There are two defences available, namely:

  1. he reasonably believed that he had authorisation to do the act in respect of which the proceedings are brought, or
  2. in all the circumstances there was an overriding public interest which justified the doing of that act.

Authorisation means authorisation given in relation to all prisons or prisons of a specified description by Prison Rules or administratively the Secretary of State or, in relation to a particular prison, by the Secretary of State or the governor, director of the prison or by a person authorised by the governor or director for this purpose. Examples where authorisation might be given would include contractors doing building works where it may be necessary to throw articles into prison. It is difficult to conceive of many circumstances where a court would be persuaded that overriding public interest justified such an act.

Overlap with other offences

Sections 40A to 40C of the Prison Act 1952 lists three categories of articles (such as drugs and mobile phones) that cannot be taken into prison. These offences also cover items that are thrown. Therefore, section 40CB is concerned with any other item (however innocent an item it may be) and includes psychoactive substances which are seen as a particular menace at present.


This offence carries a maximum prison sentence of 2 years (but note that penalties under sections 40A-40C can be up to 10 years), and imprisonment is highly likely absent compelling mitigation. It is therefore vital that you have the best possible representation.

How can we help?

Many people face a dilemma when loved ones make requests for items to be brought in to prisons. If you have made a mistake, we will ensure that the entire background is presented to the court in mitigation, fighting for the best possible sentencing outcome for you and your family.

To discuss any aspect of your case please contact Rob Barley on 01502 533020 or email

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