England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 April 2009

1. MRS JUSTICE DOBBS:

Introduction

2. This is an application for judicial review, permission being granted by Mr Justice Silber on 6th June 2008.
3. The issue in these proceedings concerns the extent, if any, of the Defendants' powers to destroy prisoners' property. It turns on the proper construction of rule 43 of the Prison Rules 1999 and paragraph 3 of Prison Service Order 1250 concerning prisoners' property.
4. When these proceedings were first issued, the Claimant challenged:

i) The decision of the Governor of HMP Wayland ("the Governor") and/or the Secretary of State (on a date unknown) to destroy the Claimant's mobile phone.

ii) The decision of the Assistant Prisons and Probation Ombudsman ("the Assistant Ombudsman") dated 16 April 2007, in which she accepted that the destruction of the Claimant's phone had been unlawful, but in which she nonetheless declined to recommend any compensation.

iii) The subsequent policy Notice promulgated by the Governor dated 27 April 2007 ("the first Notice"), stating that in all cases where mobile phones were discovered in the prison, they would be confiscated and then destroyed.

5. There have been changes since proceedings were issued, namely:

i) Following representations from the Claimant's solicitors, Bhatt Murphy, the Ombudsman himself issued a further report dated 27 July 2007, in which he upheld his Assistant's conclusions - both that the destruction of the phone had been unlawful, and that no compensation was appropriate.

ii) The First Notice of 27 April 2007 (referred to above) was withdrawn and replaced by a policy Notice of 27 July 2007 ("the Second Notice"), which no longer states that mobile phones found in the prison should be destroyed.

iii) The Secretary of State has filed Summary and then Detailed Grounds of Defence asserting, contrary to the conclusions of the Assistant Ombudsman and the Ombudsman, and despite the withdrawal of the Governor's first Notice and its replacement by the Second Notice that does not purport to authorise destruction of mobile phones, that the destruction of the Claimant's mobile phone was lawful.

6. The Claimant now seeks to challenge the Secretary of State's conclusion that the destruction of the mobile telephone was lawful and his refusal to pay compensation for its value.
7. The Claimant no longer pursues his challenge of the Ombudsman's decision, on the basis that this Court's determination of the primary issue will bind the Ombudsman for future investigations in any event.
8. The Claimant submits that his remaining challenge raises an important issue about the lawfulness of the destruction of prisoners' property. The nub of the submission is that without specific statutory authority, the Secretary of State has no power to destroy prisoners' property; and that PSO 1250, which is simply a policy promulgated by the Secretary of State, did not provide such authority.

Background

9. The Claimant was at all material times to this claim, serving a determinate sentence of imprisonment at HMP Wayland, although he has now been released, having served half of his sentence.
10. Following a visit from his girlfriend on 20 January 2006, the Claimant was found to have a mobile phone in his cell at HMP Wayland. The phone was confiscated and passed to the police to investigate whether criminal charges should be brought against the Claimant or his girlfriend for illicitly bringing the phone into the prison during a visit.
11. No criminal charges were brought by the police. However, the Claimant faced disciplinary action within the prison: he was charged and found guilty of committing a breach of Rule 51(12) of the Prison Rules 1999, which provides that it is an offence against discipline for a prisoner to have in his possession "any unauthorised article".
12. This was not the first time that the Claimant had been found in possession of a mobile phone in prison. Between 2005 and 2006 he had been found in possession of four mobile phones on three separate occasions. He had also been found in possession of a mobile phone at this previous prison. Even after the mobile phone which is the subject of this claim was confiscated in April 2006, he was again found in possession of a mobile phone on 4th November 2006.
13. The Claimant took no issue with the phone having been confiscated from him so that he could not use it in prison. He did consider however that there was no reason why it could not be kept with his stored property, to be returned to him when he was released from prison.
14. The Claimant was subsequently informed that the phone had been destroyed. Mr I'Anson, the Head of Security at HMP Wayland, initially informed the Prisons Ombudsman that the police had destroyed the phone although in his witness statement he now believes the phone was destroyed at the prison during a training exercise.
15. The Claimant made a number of complaints to the prison authorities in May and June 2006. In short, the position of the Defendants was that the confiscation of the phone had been lawful.
16. The Claimant sought legal advice. As a result he made a complaint to the Ombudsman. The Assistant Ombudsman gave her decision in a letter of 16 April 2007. In summary, the Assistant Ombudsman:

i) Accepted that the phone had been destroyed by the prison authorities.

ii) Accepted that security considerations did not provide justification for destruction of the phone.

iii) Accepted that the phone should have been returned to its owner and that "there was no reason why it should be destroyed".

iv) Nonetheless concluded that no compensation should be offered on the basis that "the Ombudsman does not consider it would be a good use of tax-payers' money to recommend that the prison reimburses you (or your girlfriend) for an item that was deliberately and illegally smuggled into the prison".

17. The closing paragraph of the Ombudsman's letter stated:

"In light of my observations on the destruction of the phone, I am copying this to the Governor for him to consider whether he should issue instructions to staff on this matter."

18. A few days later, and in response to the Assistant Ombudsman's report, the Governor promulgated the First Notice on mobile phone possession. The essence of the policy was that whenever a mobile phone was discovered, it would be destroyed.
19. Following representations by Bhatt Murphy, the Claimant's solicitor, the Ombudsman subsequently issued a further report dated 27 July 2007, upholding the conclusions of the Assistant Ombudsman, but expressing his concern that the Governor had issued the policy just referred to and his "fear that this action may be based on a misunderstanding of the Assistant Ombudsman's letter".
20. The Ombudsman recommended that the Governor issue a new policy under which no confiscated property should be destroyed except in accordance with the instructions in PSO 1250.
21. As it turned out, shortly before that report was finalised, the Governor had issued the Second Notice, under which confiscated property would (assuming its ownership was established) either be stored as part of the prisoner's stored property (to be returned on his release), or posted out to its legitimate owner.
22. Following the withdrawal of the First Notice by the Governor, and its replacement by the Second Notice, the Claimant's solicitor sought to ascertain whether the Secretary of State intended to issue any central guidance so as to ensure that other prison governors did not promulgate policies along the lines of the First Notice. By a letter from the Treasury Solicitor of 24 October 2007, the Secretary of State confirmed that no such guidance was to be issued.

The statutory provisions

The Prison Act 1952

23. Section 8A of the Prison Act 1952 ("the 1952 Act") as in force on the relevant dates, provided:

"8A Powers of search by authorised employees

(1) An authorised employee at a prison shall have the power to search any prisoner for the purpose of ascertaining whether he has any unauthorised property on his person.

(2) An authorised employee searching a prisoner by virtue of this section -

(a) shall not be entitled to require a prisoner to remove any of his clothing other than an outer coat, jacket, headgear, gloves and footwear;

(b) may use reasonable force where necessary; and

(c) may seize and detain any unauthorised property found on the prisoner in the course of the search.

(3) In this section "authorised employee" means an employee working at the prison, of a description for the time being authorised by the governor to exercise the powers conferred by this section.

(4) The governor of a prison shall take such steps as he considers appropriate to notify to prisoners the descriptions of persons who are for the time being authorised to exercise the powers conferred by this section.

(5) In this section "unauthorised property", in relation to a prisoner, means property which the prisoner is not authorised by prison rules or by the governor to have in his possession or, as the case may be, in his possession in a particular part of the prison."

24. Section 35(1) of the Prison Act 1952 ("the Act") provides, inter alia, that every prison, and all real and personal property belonging to a prison, shall be vested in the Secretary of State.
25. Section 41 of the 1952 Act provides:

"41 Unlawful introduction of other articles

Any person who contrary to the regulations of a prison conveys or attempts to convey any letter or any other thing into or out of the prison or to a prisoner or places it anywhere outside the prison with intent that it shall come into the possession of a prisoner shall, where he is not thereby guilty of an offence under either of the two last preceding sections, be liable on summary conviction to a fine not exceeding level 3 on the standard scale."

26. Section 47(1) of the 1952 Act provides:

"47 Rules for the management of prisons, remand centres and young offender institutions

(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

The Prison Rules 1999

27. Rule 43 of the Prison Rules 1999 provides:

"43 Prisoners' property

(1) Subject to any directions of the Secretary of State, an unconvicted prisoner may have supplied to him at his expense and retain for his own use books, newspapers, writing materials and other means of occupation, except any that appears objectionable to the board of visitors or, pending consideration by them, to the governor.

(2) Anything, other than cash, which a prisoner has at a prison and which he is not allowed to retain for his own use shall be taken into the governor's custody. An inventory of a prisoner's property shall be kept, and he shall be required to sign it, after having a proper opportunity to see that it is correct.

(2A) Where a prisoner is serving a sentence of imprisonment to which an intermittent custody order relates, an inventory as referred to in paragraph (2) shall only be kept where the value of that property is estimated by the governor to be in excess of £100.

(3) Any cash which a prisoner has at a prison shall be paid into an account under the control of the governor and the prisoner shall be credited with the amount in the books of the prison.

(4) Any article belonging to a prisoner which remains unclaimed for a period of more than 3 years after he leaves prison, or dies, may be sold or otherwise disposed of; and the net proceeds of any sale shall be paid to the National Association for the Care and Resettlement of Offenders, for its general purposes.

(5) The governor may confiscate any unauthorised article found in the possession of a prisoner after his reception into prison, or concealed or deposited anywhere within a prison."

28. Rule 70 similarly provided, at the material time, as follows:

"70 Prohibited articles.

No person shall, without authority, convey into or throw into or deposit in a prison, or convey or throw out of a prison, or convey to a prisoner, or deposit in any place with intent that it shall come into the possession of a prisoner, any money, clothing, food, drink, tobacco, letter, paper, book, tool, controlled drug, firearm, explosive, weapon or other article whatever. Anything so conveyed, thrown or deposited may be confiscated by the governor."

Prison Service Order 1250

29. The statutory framework is elaborated upon by guidance and directions contained in Prison Service Orders ("PSOs"), amended from time to time by Prison Service Instructions ("PSIs").
30. PSO 1250 on Prisoners' Property sets out "mandatory instructions and guidelines for the control and management of prisoners' property" (para. 1.1).
31. So far as stored property is concerned, Para. 2.4 provides:

"Stored property

2.4 The storage of prisoners' excess property, either locally or centrally, is in principle an exceptional or temporary measure. But in practice there is no power to require prisoners to dispose of property which has been accepted, nor to dispose of it without their consent. Governors must consider the merits of any prisoner's request for excess property to be held in storage, and must require an explanation from the prisoner of the reasons why the property cannot be handed out or otherwise disposed of. If the Governor agrees to the property being stored he or she must then decide whether it should be sent to the National Distribution Centre (NDC) at Branston (which will be the norm), or be retained in storage locally. Excess property of prisoners with less than 6 months remaining before discharge, and those held solely under immigration powers while awaiting a decision on deportation or removal, must be held locally rather than in Branston NDC. Other examples of prisoners who may be allowed to retain stored property include foreign nationals and others with nowhere else to send it."

32. Chapter 3 of the PSO contains guidance on confiscation of items, including unauthorised items. The material parts of this chapter are as follows:

"Confiscation or withholding of newspapers, periodicals, magazines and books and other unauthorised items, and offensive displays

3.1 Governors may confiscate any item found in the possession of a prisoner not authorised to have it, or any item which, although legitimately held, appears to be being misused for a purpose that threatens good order or discipline, or security (see also paragraph 1.6). Prisoners must be told the reasons for the confiscation of their property. The Governor must then consider what to do with any confiscated item, eg, to authorise it to be held in-possession, to arrange handing out, to store it until the prisoner is released (see paragraph 2.4), or, if it is a risk to security or ownership cannot be ascertained the item may be permanently confiscated. If ownership is not proven within a month, the item can be sold or otherwise disposed of and the net proceeds of any sale should be journalled to the central NACRO account held by FC&A (contact details: 020 72175231/5254), with supporting documentation as appropriate. Details of actions taken must be recorded on the prisoner's F2052A or F2052B (Record of Events).

3.2 The Governor must withhold or withdraw any newspaper, periodical or magazine or any particular issue, or any book, if he or she considers that the content presents a threat to good order or discipline or to the interests of prison or national security, or that possession of the material is likely to have an adverse effect on the prisoner's physical or mental condition (see paragraph 4.4 of PSO 2700 Suicide and Self-Harm Prevention on the removal of items in possession from at-risk prisoners). Any items so stopped will be put with the prisoner's stored property or may be sent or handed out to a relative or friend, where this facility is available. The Governor will record the reasons for the decision in the prisoner's F2052A or F2052B, and that the prisoner has been informed of the reasons. The Governor must also impose restrictions on the display of material which he or she considers is likely to cause offence by reason of its indecent or violent or racist content, or because it is racially or sexually discriminatory, taking account of local circumstances."

The Police and Criminal Evidence Act 1984

33. Section 22 of PACE provides:

"(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.

(2) Without prejudice to the generality of subsection (1) above -

(a) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in connection with an offence; and

(b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.

(3) Nothing seized on the ground that it may be used -

(a) to cause physical injury to any person;

(b) to damage property;

(c) to interfere with evidence; or

(d) may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail."

Procedures for handling prisoners' property

34. As described in the statement of Simon Greenwood, the procedures based on PSO 1250 are as follows. When a convicted prisoner enters prison for the first time, his or her property is checked. Possession of all property other than essential religious items is at the Governor's discretion, and is in accordance with locally published rules (PSO 1250, paragraph 1.6). Examples of items commonly authorised to be held "in-possession" are at Annex A of PSO 1250.
35. Where total items of property which might in principle, be authorised to be held "in possession" would exceed a certain volume (measured by reference to two standard size volumetric control boxes) the prisoner is encouraged to hand the excess items out to visitors or relatives, or otherwise dispose of them. The items listed at Annex B to PSO 1250 are exempt from the volumetric control requirements. If handing out or disposal by the prisoner is not possible, the excess items may be taken into the Governor's custody and stored, generally at the National Distribution Centre ('NDC') at Branston (PSO, 1250, paragraphs 2.3 and 2.4). Volumetric control measures apply throughout detention.
36. Items which are authorised to be held "in possession" or "in storage" are listed on the appropriate property record card; there are separate cards for property "in possession" and for property "in storage".
37. The same process is followed when a prisoner is transferred from another prison. The property which transfers with him is searched, and recorded or updated on his property record cards: PSO 1250, paragraph 1.4.
38. Property which is brought in for prisoners during visits, or is posted in, or purchased by the prisoner, is subject to the same procedure. The Governor (or, in practice, prison staff on his behalf) determines whether an item may be accepted, in accordance with the local rules, and either held "in possession" or stored: PSO 1250, paragraph 2.10.
39. Where a prisoner comes into possession of an item which he or she has not been authorised, by the process just outlined, to have in his or her possession, PSO 1250 provides for the confiscation of that item. The Governor is then required to determine what to do with it. The main options are: authorising the prisoner to keep it "in possession", arranging for it to be handed out, arranging for it to be stored until release, or depriving the prisoner of it permanently: PSO 1250, paragraph 3.1.

The Claimant's detailed submissions

40. The Claimant makes the following submissions.

No power derived from the Prison Rule 1999

41. Rule 43 of the Prison Rules 1999 provides for the confiscation of property which a prisoner is not authorised to have, and its retention in the custody of the Governor, to be returned upon the prisoner's release from custody. It provides that it may only be disposed of if it remains unclaimed for more than 3 years after the prisoner has left prison. The Claimant relies on the fact that a Cambridge online dictionary defines "confiscate" as - "to take a possession away from someone when you have the right to do so, usually as a punishment and often for a limited period, after which it is returned to the owner."
42. Rule 43(5) does not provide for the permanent confiscation and destruction of unauthorised property as contended for by the Defendants because:

i) Such a construction ignores rule 43(2). Rule 43(5) provides the governor with the power to confiscate "any unauthorised article found in the possession of the prisoner" and rule 43(2) prescribes that it "shall be taken into the governor's custody" and an inventory kept of the prisoner's property so held.

ii) Such a construction also ignores rule 43(4), which expressly provides for a power of sale or disposal only in strictly defined circumstances, namely where an article belonging to a prisoner remains unclaimed for a period of more than three years after he leaves prison or dies. It does not provide any wider power of disposal.

iii) The first part of Rule 43(5), on the Claimant's construction is not otiose as contended for by the Defendants, because Rule 43(5) gives the governor a discretion to confiscate, whereas Rule 43(2) imposes a duty on the governor to keep in his custody anything which the prisoner is not allowed to have.

iv) The second part of Rule 43(5) is not about property which may have been thrown over the prison wall where the owner is not identifiable as suggested by the Defendants; rather it is about prisoners' property as the title to the rule suggests. In any event, an involuntary bailee would have to take reasonable steps to identify the owner before destroying the article. Moreover, if ownership were unknown, the word "confiscate" would be inappropriate.

43. Further, it is submitted that the Claimant's construction of rule 43 is entirely consistent with fundamental common law principles concerning prisoners' rights and statutory construction. Prisoners retain all rights unless removed expressly or by necessary implication: Raymond v Honey [1983] 1 AC 1. Nothing in the Prison Rules 1999 removes a prisoner's right to property altogether. It is noted that not even in the disciplinary proceedings under Rule 55 do either the governor or adjudicator have the power to deprive the prisoner of his property rights.
44. Likewise, it is submitted that there is a long established canon of construction that:

"an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms." See Central Control Board v Cannon Brewery Co [1919] AC 744, 752; AG v De Keyser's Royal Hotel [1920] AC 508, 542."

45. The Claimant submits that it is clear, that absent primary legislation, the State has no power permanently to retain property seized even from those suspected of crime: see Malone v Metropolitan Police Commissioner [1980] QB 49; Webb v Chief Constable of Merseyside Police [2000] QB 427; Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437. In Costello, Lightman J (delivering the only substantive judgment in the Court of Appeal), following Webb, held (at para 15):

"The limited right of the police to retain property for the statutory purpose and their obligation thereupon to return it to the 'owner' are unaffected by any perceived public policy consideration that the fruits of his criminal activities ought to be withheld from a criminal."

46. Reliance is placed on the Court of Appeal decision of Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206, where Park J (giving the leading judgment) identified the following principles from Webb and Costello: (at para. 15):

"The consequences of those two cases for the present appeal are, as it seems to me: first, that if the police are holding property which they have seized from some other person who was previously in possession of it, they can only resist a civil claim by the former possessor for its return if they can identify a statutory power to retain it; second, that if the original seizure was authorised by a statutory power, it does not necessarily follow that indefinite retention of the property continues to be authorised by the statutory power; third, that a civil claim by the former possessor, brought under the Torts (Interference with Goods) Act 1977, is determined by common law principles deriving from the law of detinue and conversion, and thus rests on the right of possession; fourth, that, if the police do not have a continuing statutory power or right to retain the property, the former possessor's right of possession is superior to theirs; and fifth, that it is no defence for the police to argue that the former possessor, the claimant in the civil action, is not the true owner of the property. On the fifth point it may be different if the police can establish who the true owner is (I say nothing about a case where that is so), but otherwise the fifth proposition stands good."

47. It is accepted that since Webb and Costello were decided, Parliament has enacted the Proceeds of Crime Act 2002, whereby the Director of the Asset Recovery Agency (now the Serious Organised Crime Agency) may seek from the High Court a civil recovery order relating to property derived from crime. But the existence of this primary legislative scheme, requiring the order of a Court, it is submitted simply serves to emphasise that the Secretary of State could not by the Prison Rules (let alone by PSO 1250) confer upon himself the power to confiscate and destroy property, whether or not belonging to a prisoner.
48. The Claimant also refers to the potentially wide ranging nature of the power to confiscate permanently any unauthorised property/article, if the Defendant's case were correct. This is because the definition of "unauthorised property" in section 8A of the Prison Act is not limited to articles/property which are inherently nefarious, nor is limited to articles which have been brought into the prison unlawfully. The Claimant notes that the definition could encompass articles as diverse as blankets, jewellery, an IPod, a mobile phone such as that in the present case, or a knife. He notes that an article might be "authorised" for a particular prisoner on one day, but not on the next (e.g. if the prisoner moved from different levels of the incentive and earned privileges scheme). The Claimant then argues that (applying the principles of construction set out above) the Court should be even slower to conclude that Parliament intended to confer a power permanently to confiscate such a wide range of items without compensation, subject only to whatever policy guidance the Secretary of State may choose to implement from time to time.
49. I have set out the Claimant's original submissions in some detail. The Claimant, whilst not changing the focus of his submissions now relies on the case of Duggan v Governor of Full Sutton Prison and Another, [2004] 1 WLR 1010, in particular paragraph 29. I say now, because, in the best traditions of the Bar, Miss Weir has drawn the attention of Counsel for the Claimant to this authority. It is an authority, which the Claimant submits, is binding on this court. It is the silver bullet which defeats the Defendants' case because Duggan makes it clear that the only circumstances in which a prisoner can be deprived of ownership of his property are in the circumstances set out in rule 43(4).

The vires of Rule 43

50. Even if, contrary to the Claimant's primary submissions, the Prison Rules properly construed did purport to grant a power permanently to confiscate and destroy property, the Claimant's contention is that they would be ultra vires the 1952 Act (which provides the enabling power for the Rules to be made: see R v Home Secretary ex p Leech [1994] 1 QB 198). Section 8A of the Act, on which the Secretary of State relies, which is headed "Powers of search by authorised employees" does not expressly or by necessary implication confer a power on the Secretary of State or those acting on his behalf permanently to confiscate and destroy property which they have seized and detained as a result of their search. Nor can the enabling provisions of section 47 of the Act be said to indicate Parliament's intention to empower the Secretary of State to make rules that remove a prisoner's basic right to property permanently. It cannot be that the permanent confiscation of a prisoner's property, so that he is deprived of it even after he is no longer detained, is necessary for "the regulation and management of prisons" or for the "discipline and control of persons required to be detained therein".
51. Reliance by the Defendants on the case of Nilsen v. Governor of HMP Full Sutton and Another [2005] 1 WLR 1028 is misplaced, it is contended, because restricting a prisoner's freedom of speech, is a long way from depriving a prisoner of his property rights. In para. 22 of Nilsen, the court refers to prisoners being deprived of their liberty and enjoyment of their possession and communication with the outside world save insofar as the prison authorities allow. It goes on to say that the prison rules must necessarily make provision for the use prisoners may make of their possessions. There is no reference to deprivation of ownership: this contends the Claimant, lends support to his case.
52. The Claimant submits that further support for his argument, by analogy, can be found in the terms of section 22(3) of the Police and Criminal Evidence Act 1984, which makes clear that even where property has been seized by a police constable on the ground that it might be used to cause physical injury to any person; to damage property; to interfere with evidence; or even to assist in escape from police detention or lawful custody, the property cannot be retained once the person is no longer in police detention or in the custody of the Court.

PSO 1250

53. Even if the Secretary of State did have statutory power to destroy the Claimant's phone, that destruction, submits the claimant, was contrary to the PSO itself, because the Secretary of State's interpretation of the PSO is wrong. The PSO on its face only purports to authorise the permanent confiscation of property that presents an ongoing or inherent security risk. Items, such as mobile phones, which present a potential security risk if in a prisoner's possession, but which would be innocuous outside prison, are clearly to be stored until the prisoner is released.

Common Law Powers

54. The Claimant does not accept that there was a common law power to destroy the phone, as the Defendants contend. As a matter of principle, the Claimant argues that the passage in the judgment of Staughton J in the case of AVX Ltd v. EGM Solders (unreported, 1 July 1982) relied on by the Defendants is obiter and goes nowhere to establishing the Defendants' proposition that an involuntary bailee has a common law power to destroy items left in his possession where the item is "noxious". Furthermore, the Claimant argues that even if such a power could exist, it would have to depend on whether the item was noxious, not whether there is a significant risk that the item is noxious. There is no evidence in this case that the mobile was secreted anally or that it was the reason for destruction. Given the treatment of the phone - being sent for interrogation, returned and then put to use in a training exercise, and the reason given by the prison governor, the evidence is totally to the contrary. Even if such a power existed, there would be a duty of procedural fairness to conduct some kind of enquiry to see if it presented a health hazard. It is not good enough to destroy it for one reason and then assert without any evidence that it might be noxious years later. The Defendant would have the burden of proof of establishing that it was noxious.
55. The Defendants' alternative submission that the phone was noxious because in the hands of the prisoner it was capable of being used for injurious or harmful purposes also fails on the same grounds as the arguments relating to PSO 1250. The phone could not be said to be capable of being used for injurious or harmful purposes whilst the Claimant was still detained and whilst the phone was out of his hands and in the custody of the governor.
56. The Claimant seeks a declaration to the effect that the destruction of the phone was unlawful and damages for the tort of conversion.

The Defendants' detailed submissions

57. The Defendants submit as follows:

(1) Proper interpretation of the Rules

58. Rule 43 covers two types of situation; one is the reception of the item, which has to cross a threshold of authorisation, and the second stage, and the second is after reception, where items will have been trafficked in: (Rule 43(5)).
59. Rules 43(2) covers the process by which prisoners and their property are received into a prison. "Anything ..... which a prisoner has at a prison and which he is not allowed to retain for his own use" covers the process by which items are received into prison for the first time, and the decision to allow those items to be held "in possession" or, where they do not meet volumetric control measures, stored. Where, at reception, a prisoner is not allowed to retain a particular item for his own use, either because it is not authorised by reference to the local facilities list, or because of the application of the volumetric control rules, that item is itemised on his property record card and "taken into the Governor's custody". In practice, it is likely thereafter to be stored at Branston NDC. The same is the case with items which are subsequently handed or posted in for the prisoner, or subsequently purchased by him or her.
60. Rule 43(4), it is submitted, provides for the situation where a prisoner dies, or leaves prison, leaving possessions behind him, whether in his cell or in storage. After three years, if the items are unclaimed, the prison is entitled to sell or otherwise dispose of them, and rule 43(4) makes specific provision for the application of the proceeds of any sale.
61. Rule 43(5) gives the governor a general power to confiscate unauthorised items and deals with two situations. First, it deals with items found in a prisoner's possession "after reception". By definition, such items will be "unauthorised", since they will not have been subject to the process of authorisation of items on their first reception into the prison described above. Secondly, it deals with items concealed or deposited around the prison, in respect of which it may not be clear who the owner is. In relation to the first situation, it is not disputed that the Samsung D500 was an "unauthorised item". On its natural meaning, "confiscate" clearly encompasses permanent confiscation. The Shorter Oxford English Dictionary ("SOED") meaning of "confiscate" is:

"1. Appropriated to the use of the state, adjudged forfeited. 2. Deprived of property as forfeited."

62. Section 6 of the Proceeds of Crime Act 2002 provides for the making of a "confiscation order", such order depriving a defendant "permanently" of some or all of his realisable assets.
63. Rule 43(5) therefore entitles the Governor to confiscate any unauthorised item found in a prisoner's possession after his reception into prison. He is not required to confiscate it permanently, but is afforded the discretion to do so. The breadth of the discretion is qualified by the PSO 1250.
64. The Claimant's approach to Rule 43 is erroneous for the following reasons:

(i) The first part of rule 43(5) of the Rules would be otiose. Rules 43(2) and (4) would provide a complete code for dealings by the Governor with property (other than cash) in the possession of prisoners.

(ii) The Claimant's interpretation makes no allowance for the difference between (a) things which a prisoner has, but is not allowed to retain (Rule 43(2)), and (b) unauthorised items (Rule 43(5)). It also makes no allowance for the difference between (a) "taken into the governor's custody" (Rule 43(2)) and "confiscated" (Rule 43(5)). Although rules 43(2) and 43(5) are very differently phrased, the Claimant's interpretation would render them virtually indistinguishable in effect.

(iii) It also makes no real allowance for the last part of rule 43(5), which provides for the confiscation of unauthorised items concealed or deposited anywhere within a prison. This type of item, although clearly belonging to some person, may belong to no prisoner: it may have been thrown over the wall, for example, but found by prison staff before it reached any prisoner. Such items cannot fairly be described as articles "belonging to a prisoner, which remain unclaimed ..... after he leaves prison, or dies", such that they may be disposed of within rule 43(4). Rule 43(5) must, therefore, enable these items to be permanently disposed of. On the Claimant's construction, the single word "confiscate" would be required to mean two different things in rule 43(5): temporary confiscation only in the case of property in the possession of a prisoner (subject to rule 43(4)), but permanent confiscation, where appropriate, in the case of other items. There is no basis for seeking to subdivide the rule in this way.

(iv) On the other hand, if the Claimant's contention is that the word "confiscate" cannot mean permanent confiscation in any case, then there would be no power of disposal for items not belonging to a prisoner. Rule 70 also uses the word "confiscate" in relation to items conveyed into or thrown or deposited into a prison without authority. The governor must have power to dispose of the items if he cannot establish ownership of the item.

(2) If the Rules permit permanent confiscation, are they "ultra vires" the Act?

65. The fact that, as a basic principle, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication takes matters no further, the Defendants submit. While detained, prisoners are on property belonging to the Second Defendant and therefore the Second Defendant is entitled to make rules prescribing the extent to which prisoners are entitled, legally, to bring their own possessions onto that property; or to have others do so on their behalf; and to regulate the consequences of their doing so. The right of a convicted prisoner to possess property, and to deal with his property as he wishes, is therefore necessarily circumscribed by the fact of his imprisonment, and his possession of his property while in prison is dealt with in accordance with the procedures outlined in PSO 1250.
66. The statutory basis for the power of confiscation in rule 43(5) of the Rules derives from section 47 of the Act. That section entitles the Second Defendant to make rules for the regulation and management of prisons, including for the discipline and control of persons required to be detained therein. Controlling the amount and nature of the possessions which convicted prisoners are entitled to bring into prison, and to have in prison, and providing for the consequences of unauthorised possessions being present on prison premises, including permanent confiscation in appropriate cases, is centrally within this power: Nilsen v. Governor of HMP Full Sutton and Another [2005] 1 WLR 1028, paragraphs 19 and 22. In the case of Duggan, it was common ground that this power enabled the Secretary of State to make rules in relation to the property which prisoners may have with them in prison; and, in particular, in relation to the retention of, and restriction of access to, cash. Rule 43(5) is therefore intra vires the Act.

(3) ? The interpretation and application of PSO 1250

67. Para. 3.1 of PSO 1250 allows a Governor to confiscate "any item found in the possession of a prisoner not authorised to have it". Once an item is confiscated the Governor is required to consider what to do with it. Examples of possible courses of action given in para. 3.1 include authorising the prisoner to retain it, handing it out (i.e. to relatives or friends), storing it for the prisoner until release, or permanent confiscation. Permanent confiscation may occur if the item "is a risk to security or ownership cannot be ascertained".
68. As is evident from the evidence of the defendants contained in the statements of Katherine Richardson, of the Intelligence and Operations Unit at the National Offender Management Service, and Mr I'Anson, mobile phone use is a significant problem in prisons, including HMP Wayland, and mobile phones present a significant risk to prison security. Phone calls to family and friends are made on pay phones, and are monitored (save where their content is legally privileged). The prison system is obviously undermined by a situation where a convicted prisoner is able to have unrestricted communication with the world outside prison by means of a mobile phone.
69. Mobile phones are used for a number of reasons, for example, to arrange payment for drugs; to arrange a delivery time for the delivery of the drugs, and to arrange for other illicit items (including mobile phones) to be smuggled into prison.
70. There is a self-evident risk that they may be used in planning an escape. They are also hired out to other prisoners for payment, resulting in associated bullying for outstanding debts, and in intimidation if a phone hired by a prisoner is seized while in his or her possession. They may also be used to threaten, intimidate or arrange attacks on prison staff, or their families, or on the families of prisoners. Images of staff, prisoners or the inside of the prison itself may be captured on a mobile phone camera and transmitted externally. They may be used to arrange alibis in pending trials.
71. Finally, there is a self-evident risk that phones may be used to store details of contacts or drug transactions, which may be accessed once the prisoner leaves prison, and used to re-establish contact with serving prisoners and engage in transactions with them, presenting an on-going risk to prison security.

72. Against this background, the presence of a mobile phone in a prison is clearly a "risk to security". "Risk to security" is to be understood in its broadest sense, as encompassing not merely items which are inherently risks to security, but also items which may be used in ways which could present a risk to security. The Ombudsman erred as does the Claimant in focusing on whether an item is a risk to security once confiscated, rather than on whether it is a risk to security in the possession of a prisoner prior to confiscation; PSO 1250 is to be read as encompassing this latter situation.

72. It is submitted therefore that the Governor was legally entitled to confiscate the phone.

(4) The common law

73. Even if, contrary to the Defendants' position as set out above, there was no statutory power to destroy Claimant's mobile phone, there was such a power at common law. Where (as here) a person becomes an involuntary bailee of another's property, in the sense that the item is brought on to his property, or left there, without his consent or prior authority, that person is entitled to destroy the item where it is "of a noxious character": AVX Ltd v. EGM Solders, unreported decision of Staughton J of 1 July 1982. Ms Richardson's evidence is that mobile phones are commonly secreted internally when in prison; Mr I'Anson states that HMP Wayland has experienced a vast increase in mobile phones being trafficked anally by prisoners. There is therefore a significant risk that a mobile phone discovered in prison has been conveyed into the prison in such a way as to render it "noxious".
74. Alternatively, "of a noxious character" is sufficiently wide to encompass items which present risks to security, good order, or discipline within the prison. The SOED meaning of "noxious" is:

"Injurious, hurtful, harmful; unwholesome."

75. Mobile phones, when in the possession of a prisoner, may potentially be used to for all manner of injurious and harmful purposes, including arranging attacks on staff or other prisoners, or dealing drugs. In the circumstances there was, in any event, a power at common law to destroy Claimant's mobile phone.

(5) Conversion

76. Even if the confiscation of the phone were not authorised pursuant to the Act, the Rules and PSO 1250, this court is not able to determine the Claimant's claim in conversion and to award damages at the present hearing. The Claimant's former solicitor provided a receipt to the prison showing the Claimant's girlfriend had purchased the phone. On 9 March 2009 the Claimant served a witness statement in which he claimed, for the first time, that he had deposited money in his girlfriend's account to enable her to purchase the phone. No bank statements are appended to his statement to support this assertion. In the circumstances it is clear that there are potentially two people with a sufficient possessory interest in the phone to bring a claim in conversion, namely the Claimant and his girlfriend.
77. In those circumstances, by section 8(1) of the Torts (Interference with Goods) Act 1977, the Defendants, in any action for wrongful interference with goods, including conversion, are entitled to show, in accordance with rules of court, that a third party (in this case, the Claimant's girlfriend) has a better right than the Claimant as respects all or any part of the interest claimed by Claimant, or in right of which he sues.
78. CPR 19.5A sets out the applicable rules of Court. It provides, in particular, that:

(i) the Claimant is required to state, in his particulars of claim for conversion, the name and address of every person who, to his knowledge, has, or claims and interest in the goods and who is not a party to the claim;

(ii) The Defendants are then entitled to apply for a direction that another person (in this case, the Claimant's girlfriend) be made a party to the claim to establish the extent of her interest in the property.

79. The only appropriate course, in the circumstances, is for the present case to be transferred to the County Court, and ordered to be continued as if it had not been started by way of judicial review (pursuant to CPR 54.20). Pleadings can then be served in the usual way, and appropriate consideration given, following oral evidence, as to the extent of the Claimant's possessory entitlement to the phone.
80. The Claimant's response is to say that if the Defendants had wished to apply to join the Claimant's girlfriend as a party to the proceedings, they should have done so long before the hearing; and that in any event such a step would be pointless where there was no evidence that the Claimant's girlfriend was asserting any interest over the phone. The Claimant says that the phone was bought with his money and thus as his agent, and that even if it had not been, it would have been gifted to him. The Claimant argues that there is thus no need for the matter to be transferred to the County Court to determine whether damages for conversion should be paid to the Claimant or his girlfriend.

Discussion and Decision

81. The challenge now before the court concerns the lawfulness of the destruction of the phone. The original challenge was to the decision to destroy the phone. The court notes in passing that the evidence about any decision to destroy the phone is almost non-existent. Different accounts have been given by the prison governor: first, that the police destroyed the phone. The governor now in his statement of 2 October 2008 seems to say that the phone was destroyed by drug detection dogs during training exercises at the prison. There is no record, as there should have been, of the phone being confiscated; of it being sent out for interrogation; being returned to the prison and being booked out for the training session and finally destroyed.
82. It is to be inferred from the prison governor's response to the Claimant's complaint dated 19 September 2006 that the phone was still in existence on that date, some many months after it was taken away. I quote from the governor's response:

"The phone remains confiscated and until you supply the details of the actual trafficker Lisa will remain on closed visits."

Whether it had been sent for interrogation by that stage is unknown.

83. That being said, however unsatisfactory the position is in relation to the audit trail, it is common ground that the phone has been destroyed by the prison authorities.

The Issues to be considered

84. There are a number of issues which need to be considered. Depending on the findings of the court, not all may need to be addressed. I set out the "route map to decision" for the sake of clarity.
85. The first issue the court has to address is whether the governor has a statutory power, not just to confiscate, but to confiscate permanently, thereby depriving the prisoner or others of their rights in the property. The Claimant argues that there is no such power. The Defendants assert that the power derives from rule 43 (5).
86. If the court finds that there is no such power under Rule 43 (5), then the Defendants argue that there was a common law power available. If rule 43 (5) is found to vest such a power in the Defendants, the Claimant submits that it is "ultra vires" the Act. If the court finds that is "ultra vires" the Act, then the Defendants rely on the common law power argument. If the court finds that rule 43 (5) is not "ultra vires" the Act, then the court has to consider the interpretation of PSO 1250 to decide whether, on the facts of the case, the governor wrongly interpreted the provisions of PSO 1250 when purporting to act under paragraph 3.1 of the order. If the court finds that he did not err in his interpretation of paragraph 3.1, then the claim fails. If the court finds that the governor did err in his interpretation, then the Defendants rely on the common law power argument.
87. If the claim succeeds, the question which then follows is whether the court should, apart from making a declaration, award damages or, as the Defendants submit, transfer the case to the County Court for determination of the issue, given that there are, according to the Defendants, third party interests at stake.

The Proper Interpretation of the Rules

88. Although the Defendants challenge the ownership of the phone, for the purpose of this legal argument they submit that they had the power of permanent confiscation under rule 43 (5) whether the phone belonged to the Claimant or his girlfriend.
89. The Claimant places firm reliance on Duggan which, it is submitted, makes it clear that rule 43 (5) is concerned with possession and not ownership and that so far as prisoners' ownership is concerned, deprivation of their rights can only be under rule 43 (4). The ratio in paragraph 29 in Duggan binds this court. Alternatively, the Claimant submits that if it is not part of the ratio, it is obiter of the most persuasive kind, as it is directly on the point and should be followed, unless there are very compelling reasons not to.
90. It seems to me therefore that the first task is to determine whether or not Duggan is binding on this court because, depending on the answer, many of the issues raised in argument may not need to be considered.
91. Duggan was a case involving the interpretation of the cash provisions in rule 43 (3) and whether, in the circumstances set out in the rule, a trust was imposed upon the prison governor. The Court of Appeal held, that the purpose of rule 43 (3), was to transfer possession and ownership of a prisoner's cash to the governor; that no trust was imposed on the governor, and that the relationship was one of creditor and debtor.
92. Lord Justice Chadwick, giving the judgment of the court with which Lord Justice Keene and Lord Justice Gibson agreed, identified the relevant question the court had to decide. Paragraph 28 reads:

"28 The relevant question, therefore, is not whether rule 43 (3) of the 1999 Rules is intended to deprive the prisoner of an existing equitable interest in the notes and coins which are taken from him on reception into prison. There was no existing equitable interest. The legal title carried with it all rights of ownership, both legal and beneficial. the relevant question is whether the circumstances under which the notes and coins were taken from the prisoner pursuant to rule 43 (3) were such as, in equity, to impose a trust on the governor, or on the Prison Service. The approach of the judge to the issue which he had to decide was correct; he was right to identity the central question in the terms which he did."

The judge then went on in these terms at paragraphs 29 to 31:

"29 In order to address that question it is, I think, pertinent to have in mind that rule 43 of the 1999 Rules is as much about possession as it is about ownership. In particular - contrary to the submission made on behalf of the appellant - rule 43 (2) is all about possession and not at all about ownership. The effect of that rules is to require that a prisoner is deprived of possession of chattels without being deprived of ownership. If that rule is to be analysed by reference to private law concepts, the chattels are transferred into the custody of the governor by way of bailment. The treatment of unauthorised articles found in the possession of a prisoner after reception into prison reflects the same approach. The articles may be confiscated by the governor under rule 43 (5) - so that the prisoner is deprived of possession - but there is nothing to suggest that the prisoner is thereby deprived of ownership. Deprivation of ownership is authorised only by rule 43 (4) - which provides that any article 'belonging to a prisoner which remains unclaimed for a period of more than three years after he leaves prison, or dies' may be sold and the proceeds of sale paid to NACRO for its general purposes.

30 Rules 43 (3) of the 1999 Rules requires that the prisoner is deprived of the possession of the notes and coins which he has on reception into the prison. And, as the evidence shows, that is what happens - see paragraph 6 of PSI 79/97 and paragraph 13.3.3 (a) of PSO 7500. Plainly, rule 43 (3) is intended to - and, as implemented, does - deprive the prisoner of a civil right which he would otherwise have; namely, the right to possess notes and coins. No complaint is made about that. As I have said, it is accepted that it was a proper exercise of the power conferred by section 47 (1) of the 1952 Act to regulate prisoners in relation to the retention of, and the restriction of access to, cash in prison. But notes and coins, although property in the nature of a chattel and capable of being owned, are fungibles; and have the particular feature that, in a case where the transferor was himself the full legal and beneficial owner, ownership (or title) to the notes of coins passes with possession - save, perhaps, where there is some clear intention to treat the notes and coins as non-fungible. And, in that context, there is no distinction between legal and beneficial ownership of the notes or coins. Cash deposited with another as banker is neither the subject of a bailment at law nor of a trust in equity.

31 It is, to my mind, reasonably clear that it is those particular features of cash - fungibility and the identity of possession and ownership - that has led to the difference in treatment under rules 43 (2) and (3). It would have been possible to provide that the notes and coins taken from a prisoner on reception into prison be kept in an individual sealed bag, to be returned to the prisoner on discharge. In such a case there would be a bailment; ownership of the notes and coins would not pass to the prison authorities. But, plainly, that was not the intention of the rule-maker. The purpose of rule 43 (3) is to transfer possession and ownership of the cash together, in the ordinary way. This is, in effect, acknowledged by the appellant who accepts that legal ownership of the notes and coins does pass to the prison authorities when the cash is taken from the prisoner on reception. But, as I have said, the passing of ownership carries with it both legal and beneficial rights unless there is something in the circumstances which should lead equity to impose a trust."

93. Lord Justice Chadwick then went on to answer the question posed.
94. I have come to the conclusion that this court is bound by case of Duggan even though the rule in issue in that case was rule 43 (3). It is not without some hesitation, as I have some sympathy with the Defendants' submissions about the paucity of reasoning and lack of argument on rule 43 (5).
95. However, it seems to me, that the Defendants have difficulties in submitting that the observations were entirely obiter and of no persuasive weight at all because -

(a) Lord Justice Chadwick first identified the question to be answered by the court (see paragraph 28);

(b) It is clear that in order to answer the question he considered that rule 43 as a whole needed to be considered. In other words, he indicated that this exercise was a necessary part of arriving at his conclusion. He thereafter dealt with all the relevant sub-sections of the rule, including rule 43 (5), albeit, as the Defendants submit, without descending into detail for his conclusion;

(c) Lord Justice Chadwick noted in paragraph (4) of the judgment that rule 43 (3) - the rule with which the court was primarily concerned - had to be read in conjunction with rule 43 (2), (4) and (5);

(d) He also came to his conclusion against the background, as noted in paragraph 25, that under English law a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. This impacts on rule 43 (3) (4) and (5). His conclusion in paragraph 29 was that there was no express or necessary implicit power vested in the Secretary of State to deprive the prisoner of ownership of property, save in the very limited circumstances of rule 43 (4) and, in the case of cash, rule 43 (3);

(e) The rest of the court agreed with the reasons given by Lord Justice Chadwick. There was no suggestion by other members of the court that the conclusions in paragraph 29, which are challenged by the Defendants, were obiter and not binding authority for the proposition stated therein.

(f) Save for disagreeing with the decision and noting the lack of detailed reasons and that the case was about rule 43 (3), counsel for the Defendants has conducted no analysis of Lord Justice Chadwick's judgment to show that the observations were "not part of the ratio and entirely obiter and of no persuasive value at all".

96. That being the case, in the light of the way the case has been argued, it seems to me that, following Duggan, the court is bound to find that rule 43 (5) does not confer on the Defendants the power permanently to confiscate prisoners' property and deprive the prisoner of his right of ownership in the property, save the limited and express situation envisaged in rule 43 (4) where, in effect, the property is being treated as abandoned.
97. The consequence of this finding is that the court need not trouble itself with the "vires" issue, nor the issue of the interpretation of PSO 1250.
98. I turn therefore to the Defendants' claim that there was a common law power to dispose of the mobile phone.

Common Law Power

99. The Defendants' submission is put in two ways. First, the mobile phone may have been a health hazard because sometimes these phones are secreted into the prisons anally, and, secondly, it is a "noxious" thing because of the potential harm it could cause in the hands of prisoners. It is to be noted that the Defendants in their detailed grounds of resistance did not seek to raise this common law power as a defence. That does not mean that now it should not be given due attention. It is perhaps however an indication that, as counsel for the Claimant suggests, there has been some last minute "ex post facto" reasoning taking place. I suspect that when Miss Weir discovered Duggan, the Defendants were looking anxiously for a fall-back position.
100. Reliance has been placed on AVX Ltd for the proposition that - as the First Defendant was involuntary bailee of the Claimant's or the Claimant's girlfriend's property - he was entitled to destroy the item, because it was of a "noxious" character. I need not trouble to set out the facts of AVX because they bear no resemblance to the present case. The passage relied on is as follows:

"I find that EGM were in breach of duty in failing to discover that the 21 boxes were not their property. Had they done so, they would then have ceased to be unconscious bailees and become involuntary bailees. There was a good deal of discussion of the duty of an involuntary bailee in the course of the argument. It was said that he is free to do nothing whatever if he wishes with goods that have been dumped on his doorstep, thrown over his fence or otherwise thrust upon him without invitation. That may well be right but at least it must be his duty not forthwith to destroy or damage them without any inquiry of the true owner at any rate unless they are of noxious character. I do not think that Mr Barnes contended otherwise and, in any event, I so hold."

101. The Claimant argues that the reference to "noxious" was obiter, because it was not necessary to the decision, and the words "I so hold" were in reference to the duty not forthwith to destroy or damage the goods without inquiry.
102. I turn first, however, to the question of whether the mobile phone was "noxious", because even if a common law power does exist, the Defendants would have to show the phone was noxious.
103. I have considered the evidence and I have come to the conclusion that there is no evidence to show that the phone was noxious in the sense of being a health hazard or to support the Defendants' submission that there was a significant risk that the phone was a health hazard. That is because -

(1) there is no evidence that the phone was secreted anally;

(2) had this been a serious concern at the time of confiscation, then the phone would have been destroyed at or near the time of confiscation as being a health hazard, not kept for many months;

(3) the evidence shows that the phone was sent for interrogation;

(4) it was returned;

(5) it was then used in a training course during which it was apparently destroyed;

(6) it is not given as the reason for destruction by the prison governor who states at paragraph 13 of his statement:

"Given the claimant's involvement within the drug culture and the strong likelihood that the phone contained details of transactions and contacts, I also believe that upon release from prison and recovery of the phone, he would re-establish contact with serving prisoners and establish himself in the supply chain, whether phone or drugs. I considered therefore that securing the confiscated phone at the National Distribution Centre at Branston Store (the central facility for the long-term storage of prisoners' property) would not be sufficient."

104. He also went on to justify the destruction of the phone on the basis that the phone was not legitimately the Claimant's as the claimant's girlfriend had bought the phone, and that the girlfriend was on notice that mobiles should not be brought into prisons.
105. As for the Defendants' submission that the phone was of a "noxious" character because, in the hands of a prisoner, it may be used for all manner of injurious and harmful purposes, for this submission to succeed, given the reliance placed on AVX Ltd, the Defendants would have to show that the phone was noxious in the hands of the involuntary bailee, namely the prison governor, not in the hands of the prisoner. For it to be noxious in the hands, figuratively speaking, of the involuntary bailee, it could only be something which was inherently injurious, hurtful, harmful or unwholesome.
106. A mobile phone, save for where it has been suggested that over-use may have some harmful effects, is not, so far as I know, injurious, hurtful, harmful, unwholesome per se. There is no evidence to suggest that the phone had been altered in such a way that it was a potentially dangerous piece of technological wizardry, such as Q might have invented for James Bond, like a timer, a bomb, a listening device, a device programmed which could emit harmful substances into the atmosphere etc.
107. The evidence shows to the contrary. The phone had been interrogated. If there was anything in the nature of details of transactions and contacts, such as the governor suggested was likely, this would have been discovered on interrogation and, no doubt, the phone would have remained in police custody while the police tried to follow up the leads. If the phone had any other device that was potentially dangerous it is highly likely that it would have been destroyed, not returned to the prison. That the phone was returned to the prison seriously undermines the reasons given by the governor.
108. In the light of this finding, I need not consider whether indeed such a common law power as contended for by the Defendants exists or whether indeed the prison governor was an involuntary bailee. In truth, this case is and always has been about the Defendants' statutory powers.
109. It follows from what has gone before that this claim must succeed. I will deal with the issues of remedies having had some further discussion with counsel in the case.
110. (To counsel) The first remedy was a declaration, Mr Grodzinski, was it not?
111. MR GRODZINSKI: Yes.
112. MRS JUSTICE DOBBS: I cannot remember if you set out the terms of the declaration that was sought.
113. MR GRODZINSKI: Can I double-check?
114. MRS JUSTICE DOBBS: Yes.
115. MR GRODZINSKI: If my Lady turns to page 62 of the document bundle you will see under the heading "Relief" in paragraph 34 -

"The claimant seeks the following relief: a declaration that the destruction of his phone was unlawful."

116. MRS JUSTICE DOBBS: I think, given that there is an issue about whose phone it is, perhaps we ought to be more specific and say the destruction of the phone (and it is identified by its model) - - - - -
117. MR GRODZINSKI: If my Lady said, "the destruction of the phone at issue in this case."
118. MRS JUSTICE DOBBS: Yes. " - - - - - was unlawful."
119. MR GRODZINSKI: Yes.
120. MRS JUSTICE DOBBS: I will make the declaration in those terms unless Miss Weir has any other observations. Regarding the issue of damages - I assume, Miss Weir, that you will be seeking to appeal.
121. MISS WEIR: We will.
122. MRS JUSTICE DOBBS: It struck me that whatever the merits - because I have some thoughts about the rest of the issues, but obviously I did not need to deal with them, that I ought to give leave to appeal, not on the basis of likely prospect of success but on the basis that it is important, first of all, whether my decision about paragraph 29 of Duggan being part of the ratio is right or wrong, but, in any event, so that the Court of Appeal can actually look at this rule, and PSO 1250 as well and have it fully argued and ventilated, so that there is an authoritative decision in place, especially in light of the current pending document.
123. I do not think there is any point, Mr Grodzinski, in my going further and dealing with the question of damages.
124. MR GRODZINSKI: I am not going to seek to persuade you.
125. MRS JUSTICE DOBBS: There is no point.
126. MR GRODZINSKI: Even if my Lady granted us damages now then that would be appealed. If you had said, following the defendants' submissions, that it should go back to the County Court we would all be applying for a stay of that until the Court of Appeal decided the appeal.
127. MRS JUSTICE DOBBS: Yes. In my view, there is no point.
128. MR GRODZINSKI: All I would do in open court is to record the defendants' acceptance during the course of argument that if damages are payable to the claimant at all, they are payable in the sum of £209.99. The last thing the Court of Appeal needs to do is to start getting involved in an inquiry about valuation.
129. MRS JUSTICE DOBBS: That is fine, Mr Grodzinski. So I am going to give leave on the basis that the Court of Appeal needs to look at this issue and give an authoritative determination on it.
130. MR GRODZINSKI: am very grateful. Can I seek (a) a declaration in the way it is indicated you would grant?
131. MRS JUSTICE DOBBS: Yes.
132. MR GRODZINSKI: Secondly, the claimant's costs: obviously if there is an appeal, we would have to see what happens, but pro tem we seek an order for our costs.
133. MRS JUSTICE DOBBS: Miss Weir?
134. MISS WEIR: That is not opposed.
135. MRS JUSTICE DOBBS: Is it legal aid taxation?
136. MR GRODZINSKI: The last order is legal aid taxation.
137. MRS JUSTICE DOBBS: All right, I will make those orders.
138. MISS WEIR: May I seek an extension of a week for lodging the notice of appeal to date from the time a final transcript is received so 28 days from receipt of a final transcript?
139. MRS JUSTICE DOBBS: Yes. In any event, I am going to be - as you know - out of London as of this evening until June. It takes quite a while for things like transcripts that have to be approved to be forwarded on to wherever I am going to be.
140. MISS WEIR: In that case I have no need to seek an extension of time, but if I could make it 21 days - the standard period - running from receipt of transcript.
141. MRS JUSTICE DOBBS: From when you get the final transcript, yes. So you know, it is not likely to be before the beginning of May because I am out on circuit.
142. MR GRODZINSKI: As I would have been asking for the same order had I lost, I cannot object.
143. MRS JUSTICE DOBBS: Is there anything else?
144. MR GRODZINSKI: No.