Following a recent conviction of a criminal defence solicitor for communicating with his client on a mobile phone, the Committee of the LCCSA felt it appropriate to send out a short note to all members reminding them of the law and suggesting some guidance. Both the Law Society and the SRA are considering issuing formal guidance in due course.
It is an offence under s40D of the Prison Act 1952 (as amended by the Offender Management Act 2007) to transmit or cause to be transmitted any image or any sound from inside a prison by electronic communications for simultaneous reception outside the prison. In short, a person making a telephone call to or from a mobile phone illicitly held inprison is guilty of the offence.
The wording of the section is unnecessarily complicated.It may be open to discussion as to whether the offender is the inmate regardless of who is making the call. However, it is easy to see how on a plain reading of the Act the offence is committed by a person who makes a call made to a mobile phone in prison as long as the call is answered and the recipient of the call speaks. Once that person does speak he is transmitting a sound and by initiating the call the caller is causing the sound to be transmitted. At the very best, the caller is procuring or aiding and abetting the offence.
The offence is an either way offence and the maximum penalty on Indictment is 2years' imprisonment. Solicitors, being in a position of trust, may be vulnerable to harsher penalties than ordinary members of the public. In the recent case a significant fine was imposed.
In addition the Standard Crime Contract 2010 provides at 21.12 that the firm must report to the LSC if a solicitor is charged with or convicted of an imprisonable offence. The SRA will require the matter to be reported if a solicitor is charged or convicted of an indictable offence. Recent correspondence with the SRA now defines "indictable" as including an either way offence. The SRA has had a number of enquiries about this type of situation which shows that this is not an uncommon scenario.
So what should the solicitor do if he knows that a client in custody is calling him on an illicit mobile phone, either because the number shows up on receiving the call, the call is outside of normal lock down times or the client informshim?
It is suggested by the LCCSA Committee that any solicitor receiving a call from a prisoner on a mobile phone is under an obligation to act to terminate the call as soon as they realise that the call is from a mobile and the person is inprison. They should inform the caller that they are committing an offence and that they will not accept calls in such circumstances. Continued calls from a mobile might conceivably lead to the termination of the retainer as the client is putting the solicitor into a position where they may be complicit in the commission of a criminal offence.
Under no circumstances should a solicitor ever call an imprisoned client on a mobile telephone. This was the situation in the recently prosecuted case.
It is not accepted that the solicitor is under any obligation to report their client to the authorities for using a mobile phone but strong advice ought to be given to the client.