Mahmood & Anor, R v

Regulation of Investigatory Powers Act 2000 does not render prison telephone recordings unlawful merely because the prison PIN system records calls under a general policy. Read together, Rules 34 and 35A of the Prison Rules 1999 permit restrictions and interception directions applying generally, including to every prisoner in a prison or to a prison category, provided the statutory regime is observed.

A conviction for conspiracy may rest on circumstantial evidence from which a jury can properly infer that a participant knew the geographical destination and scope of the agreed drug supply. Late disclosure or late service of authority documents does not make a trial unfair without identified prejudice or undisclosed material.

Two appellants were convicted at Teesside Crown Court of conspiracy to supply diamorphine within the Teesside area. One appellant was also convicted of conspiracy to supply cannabis. The prosecution relied on surveillance, telephone evidence and recorded calls made through the prison PIN system by a convicted drug supplier.

The appellants challenged the admissibility and use of the prison calls. One also contended that there was no case to answer because he was unaware that drugs were intended for supply in Teesside. The other alleged unfair disclosure failures. Both renewed applications for leave to appeal their sentences.

The central issues were whether the general recording of prison calls was authorised, whether the evidence could support the geographical element of the conspiracy, and whether procedural shortcomings caused unfairness.

1. The conviction appeals were dismissed. The renewed applications for leave to appeal conviction and sentence were refused.

2. The general recording of prisoner calls through the PIN system was lawful. Section 4(4) of the Regulation of Investigatory Powers Act 2000 authorised interception in prison when undertaken under powers conferred by rules made under section 47 of the Prison Act 1952. Rules 34 and 35A of the Prison Rules 1999, read together, allowed the Secretary of State to impose conditions generally and to direct interception of communications by any prisoner or class of prisoners. “Any” prisoner could include every prisoner. Prisoners at a particular establishment or within a category could also form a class. The blanket system was therefore neither outside section 4(4) nor ultra vires Rule 35A.

3. The court did not determine whether the telecommunications system was public or private at the point of interception. That issue did not affect the outcome. Nor did the court decide whether the continuing necessity and proportionality of the system required reconsideration from time to time.

4. There was a strong evidential basis on which the jury could infer that the first appellant knowingly participated in a heroin supply destined for Middlesbrough and, consequently, for supply within the Teesside area. His contacts with the imprisoned supplier, the principal Middlesbrough customer and those arranging the Oldham collection supported that inference. The trial judge was entitled to distinguish his position from that of another participant for whom there was no comparable evidence of knowledge of the Teesside destination.

5. The authorisations for retaining and using the relevant recorded calls had been properly obtained. The late service of the associated material was regrettable, but no prejudice beyond a short delay was identified. The evidence concerning the prison caller’s wife remained relevant to the organisation of the conspiracy notwithstanding the prosecution’s decision not to proceed against her on that count.

6. The disclosure complaints disclosed no withheld disclosable material or consequential unfairness. The sentencing judge was entitled to treat the principal heroin conspiracy as a category 1 case under the Definitive Guideline and to differentiate between offenders by their roles and circumstances. The sentences were not arguably manifestly excessive or wrong in principle.

• Court of Appeal (Criminal Division): Conviction appeals dismissed and renewed applications for leave to appeal conviction and sentence refused: [2013] EWCA Crim 2356.
• Teesside Crown Court: The appellants were convicted on 9 August 2012 of conspiracy to supply diamorphine. On 23 November 2012, one appellant received nine years’ imprisonment and the other received 15 years for the heroin conspiracy, with a consecutive 18-month sentence for the cannabis conspiracy.