The Queen (on the application of Barbara Gordon-Jones) v The Secretary of State for Justice and Another

JurisdictionEngland & Wales
JudgeMr Justice Collins
Judgment Date05 December 2014
Neutral Citation[2014] EWHC 3997 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date05 December 2014
Docket NumberCase No: CO/2081/2014

[2014] EWHC 3997 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Collins

Case No: CO/2081/2014

Between:
The Queen (on the application of Barbara Gordon-Jones)
Claimant
and
(1) The Secretary of State for Justice
(2) The Governor of HM Prison Send
Defendants

Ms Jenni Richards QC, Ms Victoria Butler-ColeandMs Annabel Lee (instructed by Mr Samuel Genen of Messrs Lound, Mulrenan and Jefferies) for the Claimant

Mr Brian Kennelly and Mr Jason Pobjoy (instructed by Treasury Solicitor) for the Defendants

Hearing date: 29 October 2014

Mr Justice Collins
1

The Claimant is and was at all material times a prisoner serving an indefinite sentence for the protection of the public following her conviction for a number of offences including arson with intent to endanger life. She was sentenced in January 2013. She has completed her tariff of 5 years by reason of time served on remand. She is now 56 years old. This claim challenges the lawfulness of Prison Service Instruction (PSI) 30/2013 which amended the Incentives and Earned Privileges Scheme (IEP) which has been in effect since 1995. The challenge relates to what are said to be unlawful restrictions on the ability of prisoners generally and the Claimant in particular to receive or have for their use books.

2

The Claimant has a diagnosis of borderline personality disorder and depression. She suffers from epilepsy and, as a result of lapses of memory, she saw a neurologist in March 2014. He noted her love of reading and the importance to her of access to books. She has a doctorate in English literature and the books she wishes to read are often such as are not normally required by fellow prisoners. Indeed, when she saw the neurologist she was reading three books, one by Alan Bennett, one by Monica Ali and the dialogues of Marcus Aurelius.

3

The importance to the Claimant of books is also referred to in a report of February 2013 from the officer concerned with her engagement with what is called PIPE. This exists to enable inmates to develop their relationship and behavioural management strategies. She regards herself as intellectually superior and preferred to read in her cell rather than socialise with others. She herself emphasises her love of books saying she cannot stress how important they are to her. Thus any restrictions on her ability to have available books which are not easily obtainable through the prison library operate particularly harshly.

4

This claim was lodged on 6 May 2014. The PSI was issued on 24 October 2013 and came into effect on 1 November 2013. Its full effect was postponed in relation to the Claimant until 18 February 2014 but one important aspect of it, namely a severe restriction on the ability of prisoners to receive items, including books, either sent by friends or relatives or brought in by visitors, had immediate effect. The first Defendant raised a delay point. The claim against the second Defendant is based on his refusal to allow the Claimant to have some particular books delivered by exercising his discretion to permit such delivery in exceptional circumstances. That decision was made on 9 April 2014 and so no delay point arises in relation to it.

5

No doubt because of the delay point raised by the first Defendant on 18 June 2014 Lang J ordered a 'rolled-up hearing'. Mr Kennelly in his skeleton argument relied on what he submitted was a principle established in cases such as R v Secretary of State for Trade and Industry and Greenpeace Ltd (no 2) [2000] 2 CMLR 94 that where a challenge was made to a policy, time ran from the date on which the policy was implemented not when a decision which directly affected an individual claimant was made. That principle must obviously depend on the circumstances of a particular case since at the very least the affected claimant must have been aware of the existence and possible effect of the policy. Here there was publicity given to prisoners about the PSI. Thus it is said the Claimant and her solicitor, who was advising her in relation to an application to the Parole Board, must have appreciated that books were included in the severe restrictions on providing items for prisoners. The solicitor had been accustomed to providing clients, including the Claimant, with books which were of a specialist nature or by authors not readily encountered. Since the PSI came into force, such provision has been impossible.

6

Mr Kennelly submitted that there would be prejudice to the first Defendant if the claim were allowed to proceed since the PSI had been implemented across the whole prison estate. While there are concerns raised about some other restrictions resulting from the PSI, this claim is limited to the restrictions on books. If it succeeds, the need either to exempt books from the IEP scheme or to remove any unreasonable restrictions would not be difficult.

7

Accordingly, I decided, if necessary by extending time, that permission should be granted. Lang J had required that the Claimant lodge an undertaking to pay the fee (then £215, now what may seem a surprisingly large increase namely £700) or an application for remission. It is clear that there must be in this case remission of that fee since I was informed that those representing the Claimant are acting pro bono. Restrictions on Legal Aid availability for prisoners may have had an impact. This judgment accordingly deals with the claim.

8

Rule 8 of the Prison Rules 1999 provides:-

(1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoner there, which shall include arrangements under which money earned in prison may be spent by them within the prison….

(3) Systems of privileges approved under paragraph (1) may include arrangements under which privileges may be granted to prisoners only in so far as they have met and for so long as they continue to meet, specified standards in their behaviour and their performance in work or other activities.

Paragraph (4) requires any system set up under paragraph (3) to include procedures to be followed in determining whether any particular privileges should be or continue to be granted and there must be reasons given to a prisoner for any adverse decision together with a means whereby an appeal can be brought. The purpose of the IEP scheme had always been to encourage responsible behaviour by prisoners, to encourage effort and achievement in work and other constructive activity and to encourage sentenced prisoners to engage in sentence planning and benefit from courses and activities designed to reduce reoffending. Privileges can be earned by good behaviour and performance and lost by a failure to maintain acceptable standards. There are four levels of privilege, Basic, Entry, Standard and Enhanced.

9

On 30 April 2013 the first Defendant announced a number of changes to "strengthen and support efforts to reduce reoffending and rehabilitate prisoners as well as giving the public greater confidence in the prison system". The main change instigated by the new PSI was that absence of bad behaviour was no longer enough to earn privileges. Prisoners would be required to work actively towards their own rehabilitation. There would be a standardised list of what was available at each level and an automatic IEP review for bad behaviour with a presumption of downgrading. Bad behaviour would result in loss of TV and prisoners would not be permitted to watch TV when they should be engaged in work or other activities.

10

In a press release on 1 November 2013 when the new PSI was to come into force, the first Defendant said:-

"For too long the public has seen prisoners spending their time languishing in their cells watching TV, using illegal mobile phones to taunt their victims on Facebook or boasting about their supposedly easy life in prisons.

This is not right and it cannot continue.

The changes we have made to the incentive scheme are not just about taking TVs away from prisoners, they are about making them work towards their rehabilitation. Poor behaviour and refusal to engage in the prison regime will result in a loss of privileges. It is as simple as that.

The expectation now is that prisoners engage in work or education as well as addressing alcohol or drug issues. Only by doing this can we hope to bring down our stubbornly high reoffending rates.

Since April, major work has been going on across the prison estate to make staff and prisoners fully aware of the changes and ensure that the scheme is implemented safely across the prison estate."

I make no comment on the first paragraph. The rest indicates the effect that the new PSI is intended to have.

11

It is unnecessary for the purposes of this judgment to cite extensively from the PSI since, as I have said, it is only its effect on the availability of books for prisoners that is material. There are for convicted prisoners four levels, namely Basic, Entry, Standard and Enhanced. Each level provides a mandatory level of weekly private cash allowance. These are:-

These sums can be reached by provisions from friends or relatives, but the relevant weekly maximum cannot be exceeded. Since a prisoner will have to provide all that he or she wants from his or her earnings and the weekly private cash allowance, it is obvious that the available amount, certainly on basic and probably on standard, will not permit the purchase of many items, let alone books.

Basic

£4

Entry

£10

Standard

£15.50

Enhanced

£25.50

12

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