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How Would the Prison Book Ban Fare Judicial Review?

Image © Columbia Pictures

About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

I want a culture in which the more you read, the more you are celebrated… I want the next generation to grow up with a real sense of style - the elegant prose style of those who have made the English language the greatest source of beauty in our world.

These were the words of Education Secretary Michael Gove, speaking in 2011 about the importance of encouraging reading amongst children and young people. The importance of reading in children’s education and development is widely reported, with studies showing that it promotes motor skills, memory, language skills, and emotional and social development. In adults too, reading has been shown to make measurable changes to brain functioning and increase social awareness and empathy. It is well established, therefore, that reading is vital to both intellectual and emotional education and should be encouraged in children and adults alike.

However, not all Government ministers seem to be as keen to promote reading as Mr Gove professes himself to be. Indeed, his colleague, Justice Secretary Chris Grayling, has come under fire from some of the country’s leading writers, including Philip Pullman and poet laureate Carol Ann Duffy, for “banning books” in prisons, via a piece of legislation described by Pullman as “mean and vindictive.”

In November 2013, Prison Service Instruction 30/2013, entitled, “Incentives and Earned Privileges,” (IEP) brought in a series of measures which the Ministry of Justice (MOJ) stated were designed to ensure “consistent rules right across the prison estate” and “that access to privileges in prison, such as wearing non-prison clothes, the level of prison earnings and extra access to the gym, was linked to how well a prisoner engages in rehabilitative activity, such as active participation in education and training.” As part of the aim of encouraging consistency between prisons, the measures incorporate a blanket ban on small parcels being sent to prisoners from family and friends on the outside, allegedly to crack down on illicit substances coming into prisons.  So why has this new rule lead to such an outcry from prisoners, prominent literary figures and the general public alike?

The IEP measures do not expressly ban books in prison. Deputy Prime Minister, Nick Clegg MP helpfully pointed this out at his monthly press conference in March:

… the measures being proposed are not about banning books, they are about making sure the security arrangements around packages delivered to prisoners are applied consistently across the prison estate… This is about a very operational decision but we make sure packages are not used to circumvent the rules of the prison estate and that is evenly applied.

What the IEP scheme does do is limit the number and type of parcels that a sentenced prisoner can receive, effectively to a one-off parcel at the start of their sentence.  Therefore, although books are not in themselves banned, access to them is highly restricted. This has created problems for prisoners both reading for their own sake in order to pass the time spent locked in their cells, and those pursuing educational courses, including Open University courses, as they are now unable to get hold of the course materials. One prisoner reports:

I am about to start a distance learning course. A friend of mine has done all these courses and is fully qualified and was going to send me all his books but we can’t have books sent in anymore.

Clegg’s defence of the IEP measures consequently amount to little more, to quote the English language’s most famous literary figure, than “words, words, words.” The prison libraries that the coalition politicians offer as an answer are notoriously under-equipped and limit the number of books a prisoner can take out. The IEP scheme does, as such, restrict access to books in prison. This article will explore some of the legal challenges that could, and as looks likely, will be brought against the scheme.

Judicial Review

Judicial review (JR) is the mechanism by which courts ensure that public bodies act within, and do not exceed, the powers granted to them. A court in a judicial review is not concerned with the merits of a decision, but in the decision-making process that led to those measures being implemented.

JR can be sought where the decision in question has been made by a public body, the claimant has sufficient standing to bring the claim for JR, and the claim is brought within the prescribed time limit. The IEP measures were brought in by the Ministry of Justice, a public body, and so the first condition is clearly satisfied (for further information on the test of what constitutes a public body, see the case of ex p. Datafin). A claimant will have sufficient standing to bring a claim for JR if they have “sufficient interest in the matter to which the claim relates,” per s.31(3) Senior Courts Act 1981: this could include prisoners themselves or, as reported by the BBC, the Howard League for Penal Reform, a pressure group campaigning on the issue (per R v Secretary of State for Foreign Affair, ex p. World Development Movement).

The time limit requirement, however, presents problems. S.31(6) SCA 1981 allows a court to refuse a claim where it feels there has been “undue delay,” and Civil Procedure Rule 54.5 requires that a claim form be filed promptly and in any case within a maximum of three months after the ground for making the claim arose. As the IEP measures were effective from 1 November 2013, the three month limitation period has now expired.  However, lawyers acting for one claimant, known as BGJ, have contested this rule on the basis that the measures were rolled out slowly across the prison network, and as such that, in the case of this particular claimant, the grounds for bringing a claim only recently arose. The court also retains a general discretion to extend the three-month time limit where there are good reasons for the delay (R v Stratford-upon-Avon DC, ex p Jackson [1985] 3 All ER 769), so it is possible that even if the three-month period is found to have expired, they would exercise such discretion in this case on the basis that the claimant has only recently been affected by the measures.

Judicial review can be brought on domestic or European grounds. The three possible domestic grounds were set out by Lord Diplock in CCSU v Minister for Civil Service as illegality, irrationality, and procedural impropriety. In the case of BGJ, lawyers have said that they propose to bring a claim against the MoJ for acting “unlawfully and irrationally,” implying that the first two grounds are the ones being considered here. A public body’s action is deemed illegal, ultra vires, if it is somehow beyond the powers of the body in question.

In the current matter, there are two likely justifications for the ground of illegality. One is that it seems that the true intention, or primary intention, of the MoJ regarding the IEP measures was not to crack down on drugs getting into prisons but to make prison conditions harsher, and that as such they were using their powers for improper purpose (Congreve v Home Office [1976] QB 629) or dual purpose of which the proper purpose was secondary to the unauthorised purpose (Westminster Corporation v LNWR [1905] AC 426). The second is that the MoJ failed to take account of relevant considerations when making their decision to implement the scheme (Roberts v Hopwood [1925] AC 578) as they have seemingly disregarded the effects that the measures would have on issues such as education and contact with family, and consequently likely effects on re-offending rates.

The ground of irrationality requires proof of a very high degree of unreasonableness. Lord Greene MR’s “Wednesbury principle” dictates that a decision will be unreasonable if “having regard to relevant considerations only, the decision-maker came to a decision so unreasonable that no reasonable authority could ever have come to it.” This has subsequently been qualified: Lord Diplock in CCSU v Minister for Civil Service stated that the test was whether a decision was “so outrageous in its defiance of logic, and of accepted moral standards, that no sensible person could have arrived at it”. Further, the Court of Appeal in R v Ministry of Defence, ex p Smith found that an irrational policy should be “beyond the range of reasonably responses open to the decision-maker.” It is therefore very hard to establish irrationality on the part of a public authority. In the current case, a claim on the grounds of irrationality is likely to cite the disproportionality of the measures to the cited problem of drugs getting into prison through parcels. Parcels were previously searched by prison officers before being delivered to prisoners so very few drugs were getting into prisons in this way. Given the likely negative effects on prisoners’ education, welfare, and likelihood to re-offend, the IEP scheme can be seen as disproportionate.

Judicial Review can also be sought under the ground of breach of the European Convention on Human Rights (ECHR). The ECHR was incorporated into UK law by the Human Rights Act 1998, and as such it is unlawful for public bodies to infringe the rights bestowed under the ECHR. We will now turn to how the IEP scheme may constitute such breach of the ECHR.

Article 3 ECHR

Article 3 sets out that “No one shall be subjected to torture or to inhuman or degrading treatment and punishment.” This is an absolute right and therefore cannot be derogated from in pursuit of any aim, no matter how worthy and legitimate.

There is generally a strict threshold for maltreatment to be considered torture (Ireland v UK), but the definition of “inhuman and degrading punishment” is less clear. The case of Pretty v UK set out that treatment will be degrading if it humiliates a person, diminishes their dignity, or creates fear, anguish, or feelings of inferiority that damage an individual’s physical and moral resistance. This has had broad application in subsequent European case law dealing with issues from detention conditions (Kalashnikov v Russia) to insufficient social benefits (Larioshina v Russia). The European Court of Human Rights remains wary of infringing on state sovereignty in issues of public policy, however, such cases show that issues concerning maltreatment are taken seriously.

Lawyers for the claimant, BGJ have stated that she is “in despair” over the policy, and that its effects are “particularly hard felt by women and by those on life sentences who depend on what they receive from the outside world to keep them motivated and incentivised." Following the above case law, and with particular emphasis on the matters of diminished dignity and feelings of inferiority that constitute degrading treatment per Pretty, it appears that breach of Article 3 could form the basis for a claim, either for JR or in its own right, against the MoJ in respect of the IEP scheme.

Article 8 ECHR

Article 8 guarantees the right of respect for an individual’s private life, family life, home and correspondence. In contrast to Article 3, Article 8 is a qualified right and therefore can be interfered with provided that such interference is prescribed by law, has a legitimate aim, and is necessary in a democratic society (Article 8(2)).

Article 8 is engaged regarding the IEP scheme due to its obvious impact upon respect for an individual’s correspondence, as parcels have effectively been banned in prisons, and also upon the family life of both prisoners and their families on the outside. One prisoner reports:

The prison service/government keep saying how important it is to maintain family ties. So they put phone prices up, send us miles away from our families and stop us from having stamps and writing materials posted in. My partner used to send them all in for me so we can all stay in touch as much as possible and that has now come to a sudden stop and now my daughter wants to know why her daddy can’t write to her anymore... I know that if I lose my family because of this lack of contact, it will be straight back to square one and I know I will go straight back to crime as I’ll have nothing left to lose.

From my personal past experience as a Youth Project Worker in prison visitors’ centres, the importance of maintaining family contact and relationships is crucial to the welfare of prisoners, their families, and their children.  The Government’s own reports cite the role of strong family relationships in reducing reoffending. Respect for a prisoner’s family life, both on behalf of the prisoner themselves and their family on the outside, should not therefore be disregarded.

However, Article 8 rights can be interfered with where such interference is proportional. In R (on the application of Daly)the House of Lords ruled that a policy of excluding prisoners from their cells whilst their correspondence was checked constituted unjustified interference with the claimant’s Convention rights. Although interference with Article 8 was prescribed by law, for the purpose set out it Article 8(2) of the prevention of crime, it was found that the policy went further than its legitimate aim as it applied in cases when there was no reason to suspect that correspondence would, for instance, reveal the commission of a crime. The House of Lords then examined the proportionality of the measure, and whether alternative measures could achieve the same legitimate aims without interfering with Convention rights. As such, the measure in question was found to disproportionately interfere with the claimant’s Article 8 rights.

Daly can be very closely applied to the IEP scheme. As above, the interference with Article 8 that stems from the banning of parcels can be considered prescribed by law and in pursuit of the legitimate aim of prevention of crime set out in Article 8(2). However, the measures go beyond this legitimate aim and are disproportional to it as, following the findings in Daly, they apply even where there is no reason to suspect that parcels would contain illicit substances. Parcels received were previously searched by prison officers, as detailed above, a measure which could achieve the same aim of ensuring that illicit substances do not enter prisons via parcels with less interference with Article 8 rights, and so the IEP measures can also be deemed disproportionate per Daly. The cases bear such remarkable resemblance to each other that the likelihood of unlawful interference with Convention rights in the current case seems to me quite clear.

Conclusion

The IEP scheme does not appear to stand up to legal scrutiny. The legitimacy of the measures introduced by the scheme can be challenged via judicial review on both domestic and ECHR grounds, and also challenged on grounds of breach of Convention rights in themselves. It remains to be seen how the cases being brought by BGJ and The Howard League will progress, but previous case law seems to substantiate such challenges, indicating that they have a good chance of success.

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Tagged: Criminal Law, Human Rights, Judicial Review, Justice, Prisons

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