R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send  EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
Her entitlement to do so was severely curtailed by the new PSI, which introduced a number of changes to the Incentives and Earned Privileges (“IEP”) scheme. The aim of that scheme is and has always been to encourage responsible behaviour, effort and achievement in work and other constructive activity, and participation in courses and activities designed to reduce reoffending. The changes were expressly intended to “strengthen and support efforts to reduce reoffending and rehabilitate prisoners as well as giving the public greater confidence in the prison system”.
However, despite ministerial comments about the importance of reading and learning as a critical part of rehabilitation, paragraph 10.4 of the new PSI imposed a virtual ban on prisoners receiving items, including books, by post or from visitors except in exceptional circumstances. Annex F provided that each prisoner may have a maximum of 12 books in his or her possession. Prisoners could still purchase books via Amazon but, with a basic maximum weekly allowance of £4, this was not likely to be a realistic option for many. They could also borrow books from the prison library but, as Collins J recognised, “at some prisons access and content leave much to be desired”.
The Claimant’s challenge
Paragraph 10.4 itself stated that these restrictions were intended “to ensure that the IEP scheme is not undermined”. Elsewhere, however, the primary reason given for the restrictions was security. In an open letter to the Poet Laureate, the first Defendant had suggested that to treat books as privilege items which must be earned would be “wholly wrong”, but justified the policy by reference to the “logical impossibility” of checking all parcels in sufficient detail to avoid any smuggling of drugs or contraband. Reference was also made to a comment by the Deputy Prime Minister that a ban on sending books to prisoners would be “ridiculous” and “outrageous”, but that the restrictions were really “about making sure the security arrangements around packages delivered to prisoners are applied consistently across the prison estates”.
The Claimant accepted the need to have regard to security considerations. She also accepted the need for an overall limit on the volume of prisoners’ possessions, and for a reasonable restriction on the number of parcels a prisoner can receive. What she did not accept was the imposition of a virtual ban on receiving books. While the Governor had a discretion to allow receipt of items in exceptional circumstances, books were not included in the list of examples in paragraph 10.4 and were apparently not regarded as falling within the “exceptional” category (a request for five books made by the Claimant on 8 April 2014 was rejected “as per the new facilities list” in the PSI).
The Claimant argued that, even accepting the first Defendant’s concerns about security, it was difficult to see how it could be reasonable to prevent someone such as her solicitor bringing in books. Presumably, such a person would already be searched upon entering the prison.
She further criticised the 12 book limit as arbitrary, unnecessary and irrational. This submission was not affected by a new discretion of the Governor to extend the limit in individual cases (hastily added to the PSI part-way through the hearing in response to a comment by Collins J) since there was no good reason for any limit at all on the number of books a prisoner can have in his or her possession, subject to the accepted overall limit on volume.
The Claimant also highlighted the inadequacy of library facilities in some prisons, often due to staff shortages. While all of the books which the Claimant had requested from the library at HMP Send had in fact been obtained for her, this was unlikely to be the reality for every prisoner who requests an unusual book from a financially stretched prison library.
Collins J’s conclusions were brief but robust. He found that the restrictions, insofar as they applied to books, were unlawful. The availability of books through prison libraries was insufficient due to problems with access, content and availability of library books. The effect of the policy was therefore contrary to the first Defendant’s stated intention to ensure that access to books, which he recognised were important for rehabilitation, was not restricted. It also failed to recognise the importance of possessing particular books to be used for reference, to be reread or dipped into frequently. Collins J said at paragraph 38 that:
“I see no good reason in the light of the importance of books for prisoners to restrict beyond what is required by volumetric control and reasonable measures relating to the frequency of parcels and security considerations.”
He then dealt shortly with the remaining aspects of the challenge. The policy merely guided the exercise of the Governor’s discretion to allow receipt of articles through the post, as it was entitled to do, and did not fetter that discretion. Article 8 ECHR added nothing and would in any case be difficult to apply in the circumstances. There had been no breach of the public sector equality duty, since the Equality Impact Assessment produced was adequate and regard was had to all relevant issues. The claim against the second Defendant failed, since he was bound to act in accordance with the policy and did not act unlawfully by doing so.
The decision has been rightly hailed as a major victory by organisations like the Howard League for Penal Reform and the Prison Reform Trust. A report by the Trust, cited by Collins J at paragraph 21 and available here, highlighted the negative impact of the restrictions not only in respect of books but also of other basic items such as writing materials, stamps, warm clothes, underwear and small gifts from family members. While stamped-addressed envelopes and replacement clothing are both included in paragraph 10.4 as potential examples of “exceptional circumstances”, anecdotal evidence in the report suggests that these items are not being allowed in practice. Collins J made clear that his judgment related only to books and that he had not considered these wider criticisms (paragraph 39), but his comment at paragraph 21 is telling:
“Overall, the IEP as now operated seems to fail to recognise that it is deprivation of liberty that is the penalty imposed and that any further restrictions must be fully justified.”
This suggests that he, at least, would require strong justification for the restrictions in respect of other items in any future claim.
Hannah Noyce is a 3rd Six pupil at 1 Crown Office Row
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