Practice and Procedure


PUBLISHED March 14, 2003

Monies belonging to a prisoner, but held by the governor of the prison, were not held on trust, either expressly or by implication, and did not have to be invested in an interest-bearing account.Claim by a prisoner ('D') serving a life sentence for murder for declarations and/or an account or inquiry regarding monies held for him by the prison governor or the Home Office. The claim raised the question whether: (i) cash of which he was deprived when arriving at the prison or; (ii) cash or securities for money which had subsequently been sent to him whilst in prison or; (iii) money that he had earned while in prison was held by one or other of the defendants on trust to pay the same to D on his release from prison, and, in the meantime, in so far as it was not otherwise applied) to invest the same in an interest-bearing account. If, as D contended, such monies were so held, he sought consequential relief in the form of accounts in respect of such interest (including an account on the footing of wilful default). The issue turned on r.43(3) Prison Rules 1999 SI 1999/728, which dealt with the procedure for cash in prisons. Home Office protocol was that monies handed to the governor pursuant to r.43(3) was paid into the general bank account of the establishment at which the prisoner was held and credited to D in the books of the prison. The issue was whether r.43(3), read in light of s.3(1) Human Rights Act 1998 and Protocol 1 Art.1 European Convention on Human Rights imposed a trust on the governor.HELD: (1) The relevant possession for the purposes of Protocol 1 Art.1 of the Convention was not D's "money" in the abstract but the "cash" D had at the prison. (2) It was accepted that the public interest justified a rule that prevented D having access to cash in the prison. D did not lose all rights ever to be reimbursed. D entitled to be credited with an equivalent sum in the prison books and to draw on that amount to the extent allowed by the privilege system. This was not incompatible with his Convention rights. There was no rule preventing him from requesting its transfer to an outside bank account. The fact that the claimant had found it difficult to open a bank account was not the governor's fault. (3) The arrangements made in respect of prisoners' cash were not disproportionate to the public interest requirement that prisoners should not have cash in prison. (4) As cash itself did not earn interest and nothing obliged D to bring cash into the prison or have it sent to him, the Convention did not help decide the question of construction. Either construction was compatible with its provisions. (5) If the drafters of the 1999 Rules had intended to create a trust, with a concomitant obligation to "invest", it would have been relatively easy to say so. The language was otherwise. To the extent that the wording of r.43(3) sought to create a relationship in private law (and that was not to say that it did so), it was clearly the relationship of debtor and creditor. (6) The requirement that the cash be paid into an account was simply there because completeness and good order required that something be said about what was to happen to the cash.Claim dismissed.