The King (on the application of Mark Alexander) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 16 June 2023 |
| Neutral Citation | [2023] EWHC 1407 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3063/2021 |
and
[2023] EWHC 1407 (Admin)
Mr Justice Andrew Baker
Case No: CO/3063/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Greg Callus acting pro bono, instructed directly by the Claimant
John Jolliffe (instructed by the Government Legal Department) for the Defendant
The Interested Party attended remotely but made no submissions
Hearing date: 23 May 2023
Approved Judgment
Introduction
The claimant seeks a judicial review of a refusal of consent for him to be interviewed by telephone by the interested party, an independent investigative journalist. Consent was required because the claimant is a serving prisoner following his conviction in 2010 on a charge of murdering his father. The refusal was therefore a decision made by the Governor of HMP Coldingley in Surrey (‘the Governor’), where the claimant is serving his life sentence, the minimum term under which was set at 16 years by the sentencing judge.
The defendant Secretary of State is responsible for that decision and the proper defendant to any judicial review claim in respect of it. Permission to apply for judicial review was granted in January 2023 by the Court of Appeal (Bean LJ), on paper, in an application brought by the claimant for permission to appeal against a refusal of permission in this court.
Mr Callus accepted a direct instruction to represent the claimant in March 2023, and has done so pro bono in the finest traditions of the English Bar. He brought to what had been well articulated, but somewhat diffuse and extensive, submissions prepared by the claimant, both a focus, limiting the argument to a few points that mattered, and a depth of analysis, underlying and informing the few points taken, that are hallmarks of the skilled, experienced practitioner. I am very grateful for his assistance, the value of which – whatever decision I might reach – was rightly acknowledged by Mr Jolliffe, for whose assistance equally I am very grateful.
It is inevitable and proper that one consequence of imprisonment on the basis of a criminal conviction is that the prisoner's freedom of speech is curtailed, but prisoners are not simply deprived of all right of free speech, nor lawfully could they be. As Lord Steyn said in the leading case of Simms, “ The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. Nevertheless, freedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests.” ( Reg. v Secretary of State for the Home Department, ex parte Simms and O'Brien [2000] 2 AC 115 at 125G).
Article 10 ECHR, as given effect under English law by the Human Rights Act 1998, provides that the basic right to freedom of expression:
(i) “ shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …” (Article 10.1), and
(ii) may be subject to inter alia conditions or restrictions prescribed by law that are “ necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Article 10.2). The fundamental basis for the legitimacy of curtailing freedom of expression is that the exercise of such freedom “ carries with it duties and responsibilities” ( ibid).
It was common ground that along with Simms, the key authorities considering Article 10 in relation to the curtailment of the ability of serving prisoners to communicate with the media are Hirst and Casciani, that is to say: R (Hirst) v Home Secretary [2002] EWHC 602 (Admin), [2002] 1 WLR 2929; and R (BBC and Casciani) v Justice Secretary [2012] EWHC 13 (Admin), [2013] 1 WLR 964). I note in passing that in Simms and Hirst, the defendant was the Home Secretary since prisons and prisoners' rights were a responsibility of the Home Office until May 2007 when that responsibility was taken over by the then newly formed Ministry of Justice.
Counsel's submissions considered those authorities, and a few others, in some detail; but as will become apparent, I have concluded that this claim succeeds on a basis that does not require those submissions to be examined.
The grounds for judicial review pursued by the claimant, as focused by Mr Callus, are that consent for the proposed telephone interview by the interested party was:
(i) unlawfully refused because the Governor misconstrued or misapplied the policy set out in Prison Service Instruction (‘PSI’) 37/2010, in that:
(a) he treated the policy as requiring there to be an urgent need to communicate such that written communication would not be effective, whereas the criterion stated in PSI 37/2010 is that a telephone conversation must be “ the most suitable method of communication” and urgency is but an example;
(b) he applied the wrong test and/or came to an irrational conclusion as regards the criterion stated in PSI 37/2010 that “ distress to victims and/or outrage to public sensibilities will not result from the broadcast”, i.e. (in this case) from the broadcasting of a recording of the proposed telephone interview;
(ii) unlawfully refused because, if the refusal was in accordance with the policy set out in PSI 37/2010, then that policy is unlawful in instructing prison governors, in effect, to operate a blanket ban on telephone contact with the broadcast media, or at all events to refuse consent in circumstances that would infringe a prisoner's Article 10 rights.
Mr Callus did not withdraw entirely reliance that the claimant had placed on ECHR Articles 6 and 8 as well. However, he did not develop any argument on those additional Articles at any length, and in my judgment they do not add anything to the claim in this case.
Legal Framework
Section 47(1) of the Prisons Act 1952 provides that “ The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions, secure training centres or secure colleges, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
The Prison/Rules 1999/728 were made under s.47(1). Rule 8(1) provides for the establishment at every prison of a system of privileges. Rule 34(1) then provides that except with the leave of the Secretary of State or as a privilege granted under rule 8, a prisoner “ shall not be permitted to communicate with any person outside the prison, or such person with him”. Thus, contact with the outside world is a privilege operating by way of exception to a general rule that an ancillary incident of incarceration is the absence of such contact. It was not suggested that that basic structure is unlawful.
Rule 34(2) of the 1999 Rules provides inter alia that the Secretary of State may impose any restriction or condition upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed: “ (a) does not interfere with the convention [i.e. ECHR] rights of any person; or (b) (i) is necessary on grounds specified in [rule 34(3)]; (ii) reliance on the ground is compatible with the convention right to be interfered with; and (iii) the restriction or condition is proportionate to what is sought to be achieved.” Rule 34(3), setting out the grounds referred to in rule 34(2)(b)(ii), lists the following:
“ (a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; and
(h) the protection of the rights and freedoms of any person.”
PSI 37/2010 (Prisoners' Access to the Media) was issued by what was then the National Offender Management Service (now HM Prisons and Probation Service (‘HMPPS’)) on 2 July 2010, and took effect from 12 July 2010. It set an expiry date for itself of 1 July 2014, but it was common ground before me that it continues in force. I was not shown whether its expiry date was expressly extended, or it has been reissued from time to time, or it has simply been treated as continuing to apply in default of having been updated or replaced.
PSI 37/2010 was issued for action by Prison Governors and Directors of Contracted Prisons. The Executive Summary in the instruction letter under which it was issued states that the PSI “ sets out the exceptional circumstances under which prisoners are allowed access to the media through visits or by telephone as well as the instructions regarding written correspondence … .” Paragraph 1.2 of the PSI states that prisoners can communicate with the media by written correspondence, by telephone, or through visits, and states in overview the policy for each of those methods of communication.
In relation to written correspondence, paragraph 1.2 states that “ most prisoners will be able to contact the media through letters only. Prisoners do not need permission from the Governor to send or receive letters from the media but there are restrictions on what can be sent out, as outlined in paragraph 2.2 below.” For telephone contact, paragraph 1.2 states as...
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