“(1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule. (2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with in accordance with the other provision of these Rules. (3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature. (4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped. (5) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1). (6) In this rule, “court” includes the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice; and “illicit enclosure” includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned, his legal adviser or a court.”
“5.1 Correspondence between prisoners and the organisations/individuals below is subject to confidential handling arrangements: Legal Advisers Courts Bar Council Law Society Official Solicitor Criminal Cases Review Commission (CCRC) Parliamentary Commissioner for Administration (PCA) Office for the Supervision of Solicitors (OSS) Healthcare Commission Office of the Legal Services Ombudsman Prisons and Probation Ombudsman (PPO) Her Majesty’s Inspectorate of Prisons (HMIP) Commission for Racial Equality (CRE) – [to be replaced by the Commission for Equality and Human Rights (CEHR) in October 2007] Members of Parliament (MP) or Members of the National Assembly for Wales (AM) or Members of European Parliament (MEP) Embassy or Consular Officials Samaritans 5.2 Prison Rule 39 (1) and Young Offender Institution Rule 17 (1) provide for correspondence between prisoners and their legal advisers (defined as solicitor, counsel, or a clerk acting on behalf of either) or the Courts to be treated as privileged. This means that such correspondence must not be opened, read or stopped, except in special circumstances. In such circumstances, mail may only be opened for examination on the instruction of an Operational Manager and in the presence of the prisoner concerned (unless he or she declines the opportunity). A comprehensive guide on the handling arrangements for Rule 39/Confidential Access correspondence is at Annex A. 5.3 Correspondence between prisoners and their legal advisers and/or courts must be handled in accordance with the guidance contained in Annex A. The envelopes of legal correspondence should be clearly marked ‘Prison Rule 39’ or in the case of YOIs and Juveniles ‘YOI Rule 17’ or ‘legal correspondence’. 5.4 ‘Confidential Access’ correspondence, which is outside this Rule, is entitled to the same privileged handling arrangements as legal mail, but applies to correspondence with certain statutory bodies and individuals (a full list is in paragraph 5.1 above). The same handling arrangements apply to Confidential Access correspondence, except that the envelope should be marked ‘Confidential Access’ (as opposed to Rule 39) and should be clearly addressed to one of the qualifying bodies. Similarly all incoming mail from these bodies and individuals should bear the appropriate identifying mark that is commonly associated with that particular organisation. In some circumstances it may be appropriate for outgoing letters addressed to these organisations to be recorded in a Communications Log. 5.5 If by oversight an outgoing letter does not bear the correct marking but is clearly addressed to an individual or organisation covered by paragraphs 5.2 & 5.3, it must continue to be treated as privileged and handled accordingly. Alternatively, if incoming correspondence does not carry the proper marking which identifies it as originating from one of the bodies listed in paragraph 5.6, then the letter should be stopped by staff but opened in the prisoner’s presence, with the stipulation that if there is clear evidence of, or an attempt to abuse this privilege, alternative arrangements will be made for the prisoner’s correspondence with these bodies. 5.6 It should be noted that only correspondence between a legal adviser and the courts is designated Rule 39, correspondence to other legal bodies generally falls under confidential access, but there may be instances where the content means that documents to other bodies would be counted as Rule 39 (e.g. copies of documents between a prisoner and his/her solicitor which are referred to the OSS, Bar Council or Law Society).”
“Correspondence between prisoners and their MP, AM and MEP must be treated as privileged but only where they are acting in a constituency capacity (not in a social capacity). This privilege does not extend to Members of the House of Lords, who have no constituency responsibilities or to Local Councillors. All outgoing correspondence must be appropriately addressed i.e. to the particular Member at (i) the House of Commons, (ii) the National Assembly for Wales and (iii) the European Parliament and should also bear the prisoner’s home or current (prison) address. All incoming correspondence should be written on and enclosed in officially recognised stationery and displaying an official identifying mark of the appropriate authority. However, if an MP, AM or MEP is writing to a prisoner in a purely social capacity, i.e. that individual is a personal friend or colleague, then the letter is not covered by this privilege.”
“Recent intelligence suggests that abuse of the Rule 39 Correspondence procedures is allowing prisoners to receive illicit items, namely drugs and pornography. In an attempt to stem this supply route ... the following procedure will apply with immediate effect: • All mail marked Rule 39 and all recorded or special delivery mail to prisoners will be separated from the ordinary mail by correspondence staff. • All mail marked Rule 39 and all recorded or special delivery mail to prisoners, once separated, will be taken to reception and x-ray searched. • Any Rule 39 mail that is not marked correctly i.e. not marked with Rule 39A or SO 5B 32(3) or no solicitors return address will be entered into the submit book for opening in the prisoner’s presence. • Any Rule 39 mail that gives the correspondence staff cause for concern i.e. hand written, not franked, tatty envelope, etc, will be entered in the submit book for opening in the prisoner’s presence. • All letters entered in the submit book must be approved by the Head/Deputy Head of Security & Operations for opening in the prisoner’s presence. When either are not available the Duty Governor must approve the submit book entries. • Rule 39 mail that has been entered in the submit will be delivered to the wing to be opened in front of the prisoner by the wing Senior Officer. The wing Senior Officer will check the contents for illicit enclosures but will not read the mail. • When the mail has been found to contain no illicit enclosures it will be issued to the prisoner. • An entry must be made in the prisoner’s history booklet whenever mail is opened in his presence under these conditions. • If an illicit item is found the mail and the illicit item must be placed into an evidence bag and delivered to Security. • The above procedure ensures that a prisoner’s right to confidential access to his legal representative is not compromised.” • All mail marked Rule 39 and all recorded or special delivery mail to prisoners will be separated from the ordinary mail by correspondence staff. • All mail marked Rule 39 and all recorded or special delivery mail to prisoners, once separated, will be taken to reception and x-ray searched. • Any Rule 39 mail that is not marked correctly i.e. not marked with Rule 39A or SO 5B 32(3) or no solicitors return address will be entered into the submit book for opening in the prisoner’s presence. • Any Rule 39 mail that gives the correspondence staff cause for concern i.e. hand written, not franked, tatty envelope, etc, will be entered in the submit book for opening in the prisoner’s presence. • All letters entered in the submit book must be approved by the Head/Deputy Head of Security & Operations for opening in the prisoner’s presence. When either are not available the Duty Governor must approve the submit book entries. • Rule 39 mail that has been entered in the submit will be delivered to the wing to be opened in front of the prisoner by the wing Senior Officer. The wing Senior Officer will check the contents for illicit enclosures but will not read the mail. • When the mail has been found to contain no illicit enclosures it will be issued to the prisoner. • An entry must be made in the prisoner’s history booklet whenever mail is opened in his presence under these conditions. • If an illicit item is found the mail and the illicit item must be placed into an evidence bag and delivered to Security. • The above procedure ensures that a prisoner’s right to confidential access to his legal representative is not compromised.”
“7. In relation to Offender Information Notice 071/2008, HMP Wakefield had become aware of the increased misuse of legally privileged mail. Intelligence information had shown that prisoners were using outside contacts with the ability to counterfeit or reproduce stationary that would, if not checked, pass as Rule 39 correspondence and therefore be unchecked and serve as pathway to the trafficking of illegal substances into an establishment. The financial gain available from this activity was enough of an incentive for some external contacts to go as far as stealing legal stamps, stationary and even franking machines in order to make the mail look as if it is rightly subject to legal privilege. In other cases, prisoners have been known to bribe administration staff from some legal firms in order to do this. I attach, as Exhibit AS2 a document showing in comparison the scanned envelopes purportedly from the same solicitors, one of which was authentic and one which was not, to illustrate what the correspondence staff at HMP Wakefield are up against and the lengths that criminals will go to in order to bypass our systems. 8. Increased intelligence received at HMP Wakefield surrounding the above led to a need for the existing policy to be reissued locally to prisoners, hence the issue of Offender Information Notice 071/2008. This notice is intended to clarify, but not amend, the national policy. It is, therefore, quite normal [for] an Offender Information Notice to be more in depth than the national policy (PSO4411) as a local instruction is localised and will state how they intend to implement national guidance. 9. Correspondence staff at HMP Wakefield face a difficult challenge when dealing with the volumes of mail they are expected to process each day. In general, all mail (including Rule 39 correspondence) is x-rayed on arrival into the prison. The Rule 39 correspondence is then separated from general mail and the batches are searched separately by the Passive Drug Dogs. 10. In relation to Rule 39 correspondence, if no contraband is discovered using the above, non-invasive, checks it is distributed to the prisoner in accordance with Rule 39 procedures. If, however, staff are concerned about the authenticity of the Rule 39 correspondence for any reason (including those set out in Offender Information Notice 071/2008), it is not stopped. Instead, it is entered into the 'submit book' and the offender is asked to open it in the presence of a member of staff. That member of staff does not read the correspondence, they merely check for unauthorised enclosures. Iconsider that these arrangements are consistent with the requirements of PSO 4411 and do not compromisethe confidentiality of this correspondence. 11. In addition to the above, correspondence staff do attempt to contact the purported sender of the Rule 39 correspondence that has given cause for concern, for example by telephoning the solicitors to check whether they have sent mail when letters are entered into the submit book. In Mr Chester's case, where correspondence was identified as being from the Court, staff did contact the Court but were informed that no records were available to confirm whether the letter received at HMP Wakefield and postmarked from the Court hadbeen sent by them.”
“Rule 39 procedures have been abused at HMP Wakefield. On several occasions offenders have received or attempted to receive mail that is an abuse of rule 39 provisions. Although there is no suspicion in regard to any law firm or legal professional involved in this practice, any correspondence sent under rule 39, but which cannot be substantiated as such is brought to the attention of the intended recipient for opening in front of staff to ascertain its status. I note that the letter in question was hand written, bore no franking marks and the sender did not fully comply with the practices outlined in PSO 4411 Annex A, paragraph 12. For these reasons you were asked to open the letter in the presence of staff to ascertain that it was from a bona fide source. I note that you refused to comply with this procedure and, as such, it has been placed in your stored property. Staff will not read your mail, they only need to ensure it has come from your legal representative. I do not concur with your perception that we are [deliberately] withholding your mail and I would emphasise that if you wish to comply with the above procedure I am confident that the matter can be resolved to the satisfaction of all parties.”
“As you refused to comply with the request to open mail in the presence of staff we were left with few options, we decided to place the mail into stored property, this would allow you to apply for your mail if you decided to open the mail in our presence. If you are unhappy with this arrangement we can return to sender.”