Salih, R. v

Where an article falls within both List B and List C under the prison-contraband regime, the court should first decide whether it falls within the more serious List B category. If it does, it should ordinarily be treated as a List B article, notwithstanding that it also satisfies the List C definition.

This overlap creates no relevant ambiguity requiring construction in favour of the accused. The article’s intended use remains relevant to sentence, but not to its initial classification where it is a component part of, or designed or adapted for use with, a List B device.

The applicants were convicted of conspiracy to convey Class B articles into prison, contrary to section 1(1) of the Criminal Law Act 1977. A serving prisoner had arranged for his brother to send books concealing a micro SD card and the working components of a USB stick.

The card could be used with mobile telephones and other devices. It was blank or encrypted when the parcel was intercepted. The sentencing judge held that the card was a List B article under section 40A of the Prison Act 1952, although it also met the List C definition in the Prison Rules 1999.

The applications for leave to appeal against sentence raised the common issue whether an article meeting both definitions must instead be classified as List C.

1. The applications for leave to appeal against sentence were refused. The micro SD card was properly classified as a List B article.

2. Section 40A of the Prison Act 1952 treats a component part of a mobile telephone, camera or sound-recording device, and an article designed or adapted for use with such a device, as a List B article. Rule 70A and rule 2 of the Prison Rules 1999 can also encompass technologically similar items as List C information-technology equipment. Modern technology therefore makes overlap between the lists inevitable.

3. The correct approach is to ask first whether the article falls within List B. Only if it does not should the court consider List C. An article within List B should ordinarily retain that classification even though it is also within List C. This construction avoids the perverse result that a smart mobile telephone would attract the lesser List C regime merely because it contains a processor and can connect to the internet.

4. The card was capable of becoming a constituent part of a mobile telephone, and the sentencing judge found that it was intended for that use. There was therefore no uncertainty to be resolved in the applicants’ favour. Its intended use could affect the appropriate sentence, but not the applicable statutory maximum arising from its List B classification.

• Court of Appeal (Criminal Division): Refused the applicants’ sentence applications in [2020] EWCA Crim 658.
• Crown Court at Stafford: Amang Salih pleaded guilty on 3 October 2019 and Awat Hamasalih was convicted on 10 February 2020 of conspiracy to convey Class B articles into prison. They were sentenced on 19 February 2020 to 24 weeks’ and 40 weeks’ imprisonment respectively.