Legal Prohibition On Prisoners From Accessing Social Networking Sites.

The English legal system, has for long served for the betterment and welfare of the society and for prisoners, as they remain a vital component of the same society, the supreme nature and discipline of the English Law has established and observed several laws, rules and proceedings in relation to their communicational rights to ensure the best-fit outcomes for the country. However, in spite of the positive struggles of the English Law, there remain legal challenges which are being still debated upon The rights of communication of the prisoners, being one of them. The prohibition of the usage of accessing social networking sites by prisoners while in custody and on temporary release has gained considerable attention.

The current (domestic) legislation granting the executive powers to exercise and pass policies in relation to the treatment and rights of prisoners is the well established Prison Act 1952 which was drafted in relation to the regulation of prisons (and not to confer rights upon prisoners). S.40(D) of the Prison Act 1952 highlighted that anyone, which includes the prionsers, visitors and even the prison staff, who without authorisation transmitted any sort of information from prison were to be found guilty of an offence. Further, it is under the authority of this Prison Act 1952 that the Prison Rules 1999 (which replaced Prison Rules 1964) came into force which further elucidated that the executive power has the authority to pass policies with reference to the rights and treatment of prionsers. With reference to communications under the Prison Rules 1999, the Secretary of State could impose restrictions on prisoner s communications for the purposes of maintaining discipline and good order of crime prevention and also, in the interest of any persons.

The Human Rights Act 1998 expects that the legislation of the United Kingdom should be construed in a way which is compatible with the European Convention and so The Human Rights Act 1998 prohibits the public authority to act in a way which is not compatible with the European convention. If an issue may arise, the UK courts can then issue a declaration of incompatibility . The Human Rights Act had an effect of incorporating the European Convention on Human Rights (ECHR) into the domestic law of the United Kingdom. Until the Human Rights Act 1998 came into force, earlier to that the European Convention on Human Rights did not have a much significant status in the English legal system. The Human Rights Act 1998 plays a vital role with reference to the rights and treatment of prisoners. It has considerably voiced for the rights it believes the prisoners must not be deprived of. In domestic law, there has been unsureness that whether prisoners actually retain the right set out in Article 10 which refers to freedom of expression.

House of Lords although acknowledged and accepted that the freedom of expression could be used by prisoners in order to gain access to the courts and to justice, but the decision stopped of upholding the right of prionsers of the freedom of expression. In the case, there were two prionsers who were serving life sentences for the serious offence of murder who claimed that they were the victims of miscarriage of justice and so wished to conduct oral interviews with two journalists who had taken keen interest in their case. The authorities of prison, however, refused to allow them unless the journalists signed an undertaking that the material gathered shall not be used for professional purposes on which the journalists refused to sign the undertaking. The High Court although, accepted the mere fact that under Article 10 of the European Convention, prisoners retained the right to freedom of expression and also that the blanket prohibition was not to be justified as an interference with their right, The Court of Appeal held that still the restrictions were lawful. Lord Steyn, acknowledge in the case of Simms said that in recent years, it was due to the extensive investigations conducted by journalists that the miscarriages were not only identified but they were later corrected.

Similarly, the Secretary of State refused permission to the BBC to either conduct interview with the prisoner or to broadcast the recorded interview, the Secretary of State refused permission to the BBC to either conduct interview with the prisoner or to broadcast the recorded interview. Similar to the situation in the case of Simms, it was argued that there was infringement of the right to freedom of expression . With regard to the decision, the point of interest was that here, in this case the courts ruled in favour of BBC when it stood for the rights of prisoners. The courts agreed that the Secretary of State s decision of now allowing permission was an absolute interference with the right to freedom of expression. This case when compared with the case of Simms highlighted the approach of courts towards the rights of prisoners. It may be argued that there is a lack of uniformity in the decision of courts regarding access to media which even includes access to social networking sites.

In particular, Article.10 of the Human Rights Act 1998 highlights the concept of freedom of expression which also may be construed in a manner that whether the prionsers are to be entitled to the usage of (social) media. Article 10(2) of the ECHR permits the interference which is firstly, prescribed by law and secondly, that which is necessary in a democratic society with freedom of expression. Although, Article 10 outlines the concept of freedom of expression, nevertheless, there still remains room in determining the extent and boundaries of the freedom of expression which is to be enjoyed by the prisoners. Although the PSI 49/2016 prohibits the prisoners, including those on temporary release from prison, from accessing social networking sites but according to Steve Foster as he states with reference to the commission decision in Bamber v United Kingdom, when it was held that there was an interference with the rights of prisoners in terms of free speech as a prison regulation had been introduced which prohibited the prisoners from talking directly to the media, the European Commission accepted and acknowledged that the prisoners had a prima facie right to freedom of expression from which they were being deprived of. In-spite of that, on the facts, the Commission held that the interference was justified within Article 10(2).

The Rule 12 of PSI 49/2011 states,

Prisoners must not be permitted to access or contribute via a third party to any social networking site while in custody. The restrictions on correspondence equally apply to communications while on temporary release from custody .

This policy has widely been debated upon. Douglas Thompson expresses that in this time where the use of Internet is quite easy and flexible, initiatives are deemed necessary to be taken to prevent the prisoners from accessing the internet (and the social networking sites) frequently. Douglas says that prisoners when accessing internet should be subject to supervision as due to their criminal liability, it may be necessary for the betterment, welfare and ultimately for the protection of the public. On the other hand, while presenting his evaluation in favour of the policy set down in PSI 49/2011, Douglas also highlights that such policies might be subject to criticism from the end of the European Convention on Human Rights. Similarly, Laird, in relation to the policy subject to discussion states about the telecommunications restriction order that while being detained by custodial sentences, communications needs to carefully observed and scrutinised and so the communications provider may take whatever action for preventing or restricting the use of communication as deemed necessary., It can be then construed from this that the since the usage of social media is a form of effective communication, therefore, as it falls under the respective category, its aspects and its usage is expected to be carefully observed.

The issue regarding the usage of Internet by prisoners was again raised when the claimant, who was serving a sentence of 14 years challenged through the judicial review, the governor s refusal to allow him to use the Internet for litigation purposes and that his right under Article 6 of ECHR according to him was breached because of the reason that he was refused access to the Internet for the purposes of accessing law reports, statutes, etc. The governor did not allow him access to Internet on the basis of security. It was however held that his application would be dismissed on the grounds that prisoners were not entitled to use the Internet, considering an unlimited access because of the sole reason that such a permission could give rise to considerable security Issues. While in the decision, it was further highlighted by the court that nothing was being violated or the claimant was not being deprived of his rights under Article 6 which was the right to a fair trial . This case highlighted that the unlimited Internet access which included even access to social networking websites was restricted due to a considerable issue of security and secondly, the refusal to the claimant to have unlimited access to the Internet, did not at anytime, deprive him of his right to a fair trial as stated under the article 6 of the European Convention on Human Rights.

Nevertheless, to my opinion, the policy being mentioned is a positive policy in relation to the welfare of the society but amendments to it may be required. Persons detained on custodial sentences are those people of the society who have already committed and acted against the legal system of the society that they are living in. Their usage of such social networking sites may prove dangerous and may be a question raised on the protection of the society because of the reasonable fact, that those people, liable of a criminal liability, might use the social networking sites as a means of committing dangerous acts. I hold the stance, that keeping in view the Human Rights Act 1998 and the European Convention on Human Rights, the prisoners should not be completely deprived of their right of freedom of expression. They may use social networking sites but should be observed by the relevant authorities that what do the people liable of a criminal liability browse while using social networking sites. My view, that they should be allowed to use the internet is due to a number of considerable reasons.

Recently, according to The Telegraph, the Chief Inspector of Prisons, Nick Hardwick has stated that more prisoners should have internet access in jail, though it may be in a highly controlled environment. According to him, particularly those detained prisoners who are nearly to be released out of prison may use the internet for healthier purposes such as the look out for jobs.

Therefore, it is due to the above mentioned reasons, that I consider and deem it necessary that the prisoners be allowed the use of Internet (Social Networking Sites), though under controlled conditions where what the prisoners may do on the Internet may be recorded effectively. Although, the European Convention on Human Rights might also then raise issues on the monitoring of the activities of prisoners of what do they do on Internet again as a violation to their freedom of expression right. Lastly, considering the mere fact that prisoners are a part of the society and Internet may aid the Prisoners in the process of rehabilitation, they may be allowed under controlled conditions which implies that the policy require amendments in terms of leniency and flexibility.