PART VIII continued CHAPTER II continued
(1) This section applies where a prisoner custody officer who performs custodial duties at a contracted out prison is responsible for the custody of a prisoner who is outside the prison for temporary purposes.
(2) For the purposes of such prison rules as relate to breaches of discipline the prisoner shall be deemed to have been in the custody of the director of the prison at all times during the period for which the prisoner custody officer was so responsible, and that officer may bring a charge of breach of such rules as so relate against the prisoner in respect of any such time.
(3) Nothing in subsection (1) above shall render a prisoner liable to be punished under prison rules for any act or omission of his for which he has already been punished by a court.
(1) In relation to a contracted out prison, the provisions specified in subsections (2) to (7) below shall have effect subject to the modifications so specified.
(2) In section 3 of the 1989 Act (general superintendence of prisons)—
(a) in subsection (1), the words from “who shall appoint” to the end shall be omitted; and
(b) subsection (3) shall not apply.
(3) In sections 9(5), 11(4), 15(1) and (3) (various functions of the governor of a prison), 33A (power of governor to delegate functions), 34 (duty of governor where prisoner dies), 39(8) and (12) (prison rules), 41(4) (detention of person suspected of bringing prohibited article into prison) and 41B(3) (testing prisoners for drugs) of that Act, in prison rules and in directions made by virtue of section 39(8) of that Act the reference to the governor shall be construed as a reference to the director.
(4) In sections 11(4) (execution of certain warrants by prison officers etc.), 13(b) (legal custody of prisoners), 33A (power of governor to delegate functions), 40(1) (persons unlawfully at large), 41(3), (4), (6) and (8) (detention of person suspected of bringing prohibited article into prison) and 41B(1) (testing prisoners for drugs) of that Act, the reference to an officer of a prison (or, as the case may be, a prison officer) shall be construed as a reference to a prisoner custody officer performing custodial duties at the prison or a prison officer temporarily attached to the prison.
(5) Section 36 of that Act (vesting of prison property in Secretary of State) shall have effect subject to the provisions of the contract entered into under section 106 above.
(6) Sections 37 (discontinuance of prison), 41(2A) and (2B) (power to search for prohibited articles) and 41A (powers of search by authorised employees) of that Act shall not apply.
(7) In prison rules, in subsection (8) of section 39 of that Act (directions supplementing prison rules) and in any direction made by virtue of that subsection, the reference to an officer of a prison (or, as the case may be, a prison officer) shall be construed as including a reference to a prisoner custody officer performing custodial duties at the prison.
(1) This section applies where, in the case of a contracted out prison, it appears to the Secretary of State—
(a) that the director has lost or is likely to lose effective control of the prison or any part of it; and
(b) that the making of an appointment under subsection (2) below is necessary in the interests of preserving the safety of any person or preventing serious damage to any property.
(2) The Secretary of State may appoint a Crown servant to act as governor of the prison for the period—
(a) beginning with the time specified in the appointment; and
(b) ending with the time specified in the notice of termination under subsection (4) below.
(3) During that period—
(a) all the functions which would otherwise be exercisable by the director or the controller shall be exercisable by the governor;
(b) the contractor and any sub-contractor of his shall each do all that he reasonably can to facilitate the exercise by the governor of those functions; and
(c) the officers of the prison shall comply with any directions given by the governor in the exercise of those functions.
(4) Where the Secretary of State is satisfied—
(a) that the governor has secured effective control of the prison or, as the case may be, the relevant part of it; and
(b) that the governor’s appointment is no longer necessary as mentioned in subsection (1)(b) above,
he shall, by a notice to the governor, terminate the appointment at a time specified in the notice.
(5) As soon as practicable after making or terminating an appointment under this section, the Secretary of State shall give a notice of the appointment, or a copy of the notice of termination, to the contractor, any sub-contractor of his, the director and the controller.
(1) The Secretary of State may enter into a contract with another person for any functions at a directly managed prison to be performed by prisoner custody officers who are provided by that person and are authorised to perform custodial duties.
(2) Sections 108 and 109 above shall apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison as they apply in relation to such an officer performing custodial duties at a contracted out prison, but as if the reference in section 109(2) to the director of the contracted out prison were a reference to the governor of the directly managed prison.
(3) In relation to a directly managed prison, the references to an officer of a prison (or, as the case may be, a prison officer) in the provisions specified in subsection (4) below shall each be construed as including a reference to a prisoner custody officer performing custodial duties at the prison in pursuance of a contract under this section.
(4) Those provisions are—
(a) section 11(4) of the 1989 Act (execution of certain warrants by prison officers etc.);
(b) section 13(b) of that Act (legal custody of prisoners);
(c) section 33A of that Act (power of governor to delegate functions);
(d) subsection (8) of section 39 of that Act (directions supplementing prison rules) and directions made by virtue of that subsection;
(e) section 40(1) of that Act (persons unlawfully at large);
(f) section 41(3), (4), (6) and (8) of that Act (prohibited articles); and
(g) prison rules.
(5) Section 41(2A) and (2B) of the 1989 Act (search of person suspected of bringing prohibited article into prison) shall not apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison.
(6) Any reference in the foregoing provisions of this section to the performance of functions or custodial duties at a directly managed prison includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a prison.
(7) In this Chapter—
“contracted out functions” means any functions which, by virtue of a contract under this section, fall to be performed by prisoner custody officers; and
“directly managed prison” means a prison which is not a contracted out prison.
(1) The Secretary of State may declare to be a prison—
(a) any building or part of a building built or adapted for the purpose; and
(b) any floating structure or part of such a structure constructed or adapted for the purpose,
whether vested in, or under the control of, the Secretary of State or any other person.
(2) Section 106(1) and subsection (1) above are without prejudice to the Secretary of State’s powers under the 1989 Act with respect to the provision of prisons.
(3) A declaration under subsection (1) above—
(a) shall have effect for the purposes of the 1989 Act and any other enactment (including an enactment contained in subordinate legislation);
(b) shall not be sufficient to vest the legal estate in any building or structure in the Secretary of State; and
(c) may be revoked by the Secretary of State at any time other than a time when the prison to which it relates is a contracted out prison.
(4) Nothing in section 36 of the 1989 Act (prison property to be vested in the Secretary of State) shall require the legal estate in—
(a) any prison provided under a contract entered into under section 106(1) above;
(b) any prison declared to be such under subsection (1) above and not vested in the Secretary of State; or
(c) any heritable or moveable property belonging to any prison mentioned in paragraph (a) or (b) above,
to be vested in the Secretary of State.
(1) In this Chapter “prisoner custody officer” means a person in respect of whom a certificate is for the time being in force certifying—
(a) that he has been approved by the Secretary of State for the purpose of performing escort functions or custodial duties or both; and
(b) that he is accordingly authorised to perform them.
(2) Schedule 6 to this Act shall have effect with respect to the certification of prisoner custody officers.
(3) Prison rules may make provision regarding the powers and duties of prisoner custody officers performing custodial duties.
(1) A person who—
(a) is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements, or at a contracted out prison; or
(b) is or has been employed to perform contracted out functions at a directly managed prison,
shall be guilty of an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular prisoner.
(2) A person guilty of an offence under subsection (1) above shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.
(1) In section 19(4)(b) of the 1989 Act (remand centres and young offenders institutions), for “33” there shall be substituted “33A”.
(2) Section 33 of that Act (miscellaneous duties of prison governor) shall cease to have effect.
(3) After section 33 of that Act there shall be inserted the following section—
Rules made under section 39 of this Act may permit the governor of a prison to authorise an officer of the prison, or a class of such officers, to exercise on his behalf such of the governor’s functions as the rules may specify.”.
(4) In section 39 of that Act (prison rules)—
(a) in subsection (1), after “Act” there shall be inserted “or any other enactment”;
(b) in subsection (8), for “the purpose so specified” there shall be substituted “any purpose specified in the rules”; and
(c) after subsection (11), there shall be inserted the following subsection—
“(12) Rules made under this section may (without prejudice to the generality of subsection (1) above) confer functions on a governor.”.
(1) In this Chapter, except where otherwise expressly provided—
“the 1989 Act” means the [1989 c. 45.] Prisons (Scotland) Act 1989;
“contracted out prison” and “the contractor” have the meanings given by section 106(4) above;
“contracted out functions” and “directly managed prison” have the meanings given by section 112(7) above;
“custodial duties” means custodial duties at a contracted out or a directly managed prison;
“escort functions” has the meaning given by section 102(1) above;
“prison” includes—
any prison other than a naval, military or air force prison; and
a remand centre or young offenders institution within the meaning of section 19 of the 1989 Act;
“prison officer” means an officer of a directly managed prison;
“prison rules” means rules made under section 39 of the 1989 Act;
“prisoner” means any person who is in legal custody or is deemed to be in legal custody under section 215 or 426 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975;
“prisoner custody officer” has the meaning given by section 114(1) above;
“prisoner escort arrangements” has the meaning given by section 102(4) above; and
“sub-contractor” has the meaning given by section 106(4) above.
(2) Any reference in this Chapter to custodial duties at a contracted out or directly managed prison includes a reference to custodial duties in relation to a prisoner who is outside such a prison for temporary purposes.
(3) In sections 102(1) to (3), 104 and 105 above, “prison”—
(a) so far as relating to the transfer of prisoners to or from a prison situated in England and Wales, includes a young offender institution and a remand centre; and
(b) so far as relating to the transfer of prisoners to or from a prison situated in Northern Ireland, includes a young offenders centre and a remand centre.
(1) The Secretary of State may make arrangements for any of the following functions, namely—
(a) the delivery of prisoners from one set of relevant premises to another;
(b) the custody of prisoners held on the premises of any court (whether or not they would otherwise be in the custody of the court) and their production before the court;
(c) the custody of prisoners temporarily held in a prison in the course of delivery from one prison to another; and
(d) the custody of prisoners while they are outside a prison for temporary purposes;
to be performed in such cases as may be determined by or under the arrangements by prisoner custody officers who are authorised to perform such functions.
(2) In paragraph (a) of subsection (1) above, “relevant premises” means a court, prison, police station or hospital; and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside Northern Ireland.
(3) Arrangements made by the Secretary of State under this section (“prisoner escort arrangements”) may include entering into contracts with other persons for the provision by them of prisoner custody officers.
(4) Any person who, under a warrant or a hospital order or remand, is responsible for the performance of any such function as is mentioned in subsection (1) above shall be deemed to have complied with that warrant, order or remand if he does all that he reasonably can to secure that the function is performed by a prisoner custody officer acting in pursuance of prisoner escort arrangements.
(5) In this section—
“hospital” has the same meaning as in the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;
“hospital order” means an order for a person’s admission to hospital under Article 44, 45, 49 or 50 of that Order, or section 11 or 13 of the [1980 c. 47.] Criminal Appeal (Northern Ireland) Act 1980;
“hospital remand” means a remand of a person to hospital under Article 42 or 43 of the Mental Health (Northern Ireland) Order 1986;
“warrant” means a warrant of commitment, a warrant of arrest or a warrant under Article 52, 53, 54, 56 or 79 of that Order.
(1) Prisoner escort arrangements shall include the appointment of a prisoner escort monitor, that is to say, a Crown servant whose duty it shall be to keep the arrangements under review and to report on them to the Secretary of State.
(2) It shall also be the duty of a prisoner escort monitor to investigate and report to the Secretary of State on—
(a) any allegations made against prisoner custody officers acting in pursuance of the arrangements; and
(b) any alleged breaches of discipline on the part of prisoners for whose delivery or custody such officers so acting are responsible.
(1) A prisoner custody officer acting in pursuance of prisoner escort arrangements shall have the following powers, namely—
(a) to search in accordance with rules made by the Secretary of State any prisoner for whose delivery or custody he is responsible in accordance with the arrangements; and
(b) to search any other person who is in or is seeking to enter any place where any such prisoner is or is to be held and any article in the possession of such a person.
(2) The powers conferred by subsection (1)(b) above to search a person shall not be construed as authorising a prisoner custody officer to require a person to remove any of his clothing other than an outer coat, hat, jacket or gloves.
(3) A prisoner custody officer shall have the following duties as respects prisoners for whose delivery or custody he is responsible in pursuance of prisoner escort arrangements, namely—
(a) to prevent their escape from lawful custody;
(b) to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;
(c) to ensure good order and discipline on their part;
(d) to attend to their wellbeing; and
(e) to give effect to any directions as to their treatment which are given by a court,
and the Secretary of State may make rules with respect to the performance by prisoner custody officers of their duty under paragraph (d) above.
(4) Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which a magistrates' court is sitting, it shall be his duty to give effect to any order of that court made under Article 110 of the [S.I. 1981/1675 (N.I.26).] Magistrates' Courts (Northern Ireland) Order 1981 (application of funds found upon defaulter).
(5) The powers conferred by subsection (1) above and the powers arising by virtue of subsections (3) and (4) above shall include power to use reasonable force where necessary.
(6) The power to make rules under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) This section applies where a prisoner for whose delivery or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison.
(2) For the purpose of such prison rules as relate to disciplinary offences, the prisoner shall be deemed to have been in the custody of the governor of the prison at all times during the period for which the prisoner custody officer was so responsible.
(3) In the case of any breach by the prisoner at any time during the period of such prison rules as so relate, a disciplinary charge may be laid against him by the prisoner custody officer.
(4) Nothing in this section shall enable a prisoner to be punished under prison rules for any act or omission of his for which he has already been punished by a court.
(5) In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside Northern Ireland, means rules made under any provision of the law of that part which corresponds to section 13 of the [1953 c. 18 (N.I.).] Prison Act (Northern Ireland) 1953.
(1) In this Chapter “prisoner custody officer” means a person in respect of whom a certificate is for the time being in force certifying—
(a) that he has been approved by the Secretary of State for the purpose of performing escort functions; and
(b) that he is accordingly authorised to perform them.
(2) Schedule 7 to this Act shall have effect with respect to the certification of prisoner custody officers.
(3) In this section and Schedule 7 to this Act “escort functions” means the functions specified in section 118(1) above.
(1) Any person who assaults a prisoner custody officer acting in pursuance of prisoner escort arrangements shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both.
(2) Article 18(2) of the [S.I.1981/155 (N.I. 2).] Firearms (Northern Ireland) Order 1981 (additional penalty for possession of firearms when committing certain offences) shall apply to offences under subsection (1) above.
(3) Any person who resists or wilfully obstructs a prisoner custody officer acting in pursuance of prisoner escort arrangements shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) For the purposes of this section, a prisoner custody officer shall not be regarded as acting in pursuance of prisoner escort arrangements at any time when he is not readily identifiable as such an officer (whether by means of a uniform or badge which he is wearing or otherwise).
(1) A person who is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements shall be guilty of an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular prisoner.
(2) A person guilty of an offence under subsection (1) above shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.
(1) In this Chapter—
“prison” includes a young offenders centre or remand centre;
“prisoner custody officer” has the meaning given by section 122(1) above;
“prison rules” means rules made under section 13 of the [1953 c. 18 (N.I.).] Prison Act (Northern Ireland) 1953;
“prisoner” means any person for the time being detained in lawful custody as the result of a requirement imposed by a court or otherwise that he be so detained;
“prisoner escort arrangements” has the meaning given by section 118(3) above.
(2) Sections 118, 119(1) and (2)(a), 120 and 122 to 124 above, subsection (1) above and Schedule 7 to this Act shall have effect as if—
(a) any reference in section 118(1), 119(1), 120 or 124 above to prisoners included a reference to persons remanded or committed to custody in certain premises under section 51, 74 or 75 of the [1968 c. 34 (N.I.).] Children and Young Persons Act (Northern Ireland) 1968 or ordered to be sent to a training school under section 74 or 78 of that Act; and
(b) any reference in section 118(1)(c) or (d) or (2) above to a prison included a reference to such premises or training school.
(3) In sections 118, 120 and 121 above, “prison”—
(a) so far as relating to the delivery of prisoners to or from a prison situated in England and Wales, includes a remand centre or young offender institution; and
(b) so far as relating to the delivery of prisoners to or from a prison situated in Scotland, includes a remand centre or young offenders institution within the meaning of section 19 of the [1989 c. 45.] Prisons (Scotland) Act 1989.
(1) The relevant employment legislation shall have effect as if an individual who as a member of the prison service acts in a capacity in which he has the powers or privileges of a constable were not, by virtue of his so having those powers or privileges, to be regarded as in police service for the purposes of any provision of that legislation.
(2) In this section “the relevant employment legislation” means—
(a) the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 and the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992; and
(b) the [S.I. 1976/1043 (N.I. 16).] Industrial Relations (Northern Ireland) Order 1976, the [S.I. 1976/2147 (N.I. 28).] Industrial Relations (No. 2) (Northern Ireland) Order 1976 and the [S.I. 1992/807 (N.I. 5).] Industrial Relations (Northern Ireland) Order 1992.
(3) For the purposes of this section a person is a member of the prison service if he is an individual holding a post to which he has been appointed for the purposes of section 7 of the [1952 c. 52.] Prison Act 1952 or under section 2(2) of the [1953 c. 18 (N.I.).] Prison Act (Northern Ireland) 1953 (appointment of prison staff).
(4) Except for the purpose of validating anything that would have been a contravention of section 127(1) below if it had been in force, subsection (1) above, so far as it relates to the question whether an organisation consisting wholly or mainly of members of the prison service is a trade union, shall be deemed always to have had effect and to have applied, in relation to times when provisions of the relevant employment legislation were not in force, to the corresponding legislation then in force.
(5) Subsection (6) below shall apply where—
(a) the certificate of independence of any organisation has been cancelled, at any time before the passing of this Act, in consequence of the removal of the name of that organisation from a list of trade unions kept under provisions of the relevant employment legislation; but
(b) it appears to the Certification Officer that the organisation would have remained on the list, and that the certificate would have remained in force, had that legislation had effect at and after that time in accordance with subsection (1) above.
(6) Where this subsection applies—
(a) the Certification Officer shall restore the name to the list and delete from his records any entry relating to the cancellation of the certificate;
(b) the removal of the name from the list, the making of the deleted entry and the cancellation of the certificate shall be deemed never to have occurred; and
(c) the organisation shall accordingly be deemed, for the purposes for which it is treated by virtue of subsection (4) above as having been a trade union, to have been independent throughout the period between the cancellation of the certificate and the deletion of the entry relating to that cancellation.
(1) A person contravenes this subsection if he induces a prison officer—
(a) to withhold his services as such an officer; or
(b) to commit a breach of discipline.
(2) The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State.
(3) Without prejudice to the right of the Secretary of State, by virtue of the preceding provisions of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any breach of the duty mentioned in subsection (2) above which causes the Secretary of State to sustain loss or damage shall be actionable, at his suit or instance, against the person in breach.
(4) In this section “prison officer” means any individual who—
(a) holds any post, otherwise than as a chaplain or assistant chaplain or as a medical officer, to which he has been appointed for the purposes of section 7 of the [1952 c. 52.] Prison Act 1952 or under section 2(2) of the [1953 c. 18 (N.I.).] Prison Act (Northern Ireland) 1953 (appointment of prison staff),
(b) holds any post, otherwise than as a medical officer, to which he has been appointed under section 3(1) of the [1989 c. 45.] Prisons (Scotland) Act 1989, or
(c) is a custody officer within the meaning of Part I of this Act or a prisoner custody officer, within the meaning of Part IV of the [1991 c. 53.] Criminal Justice Act 1991 or Chapter II or III of this Part.
(5) The reference in subsection (1) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code.
(6) In subsection (5) above “the prison rules” means any rules for the time being in force under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989 or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules).
(7) This section shall be disregarded in determining for the purposes of any of the relevant employment legislation whether any trade union is an independent trade union.
(8) Nothing in the relevant employment legislation shall affect the rights of the Secretary of State by virtue of this section.
(9) In this section “the relevant employment legislation” has the same meaning as in section 126 above.
(1) The Secretary of State may by regulations provide for the establishment, maintenance and operation of procedures for the determination from time to time of—
(a) the rates of pay and allowances to be applied to the prison service; and
(b) such other terms and conditions of employment in that service as may appear to him to fall to be determined in association with the determination of rates of pay and allowances.
(2) Before making any regulations under this section the Secretary of State shall consult with such organisations appearing to him to be representative of persons working in the prison service and with such other persons as he thinks fit.