Social Media: MOJ Mistake or a Climbdown?

The Ministry of Justice (MOJ) is so accident-prone that sometimes it’s difficult to distinguish between a cock-up and a conspiracy. In my previous blog post (here) I flagged up a seemingly unlawful bid by the grey suits down at the MOJ HQ in Petty France to prohibit prisoners’ families and friends from updating social media accounts such as Facebook or Twitter on behalf of those serving custodial sentences.

MOJ in Petty France:
The Heart of Darkness

Having posted my disturbing discovery on this blog, I launched a modest Twitter campaign to alert a wider audience to the issue under the hashtag #NoToGovesGag. I felt that people should at least be aware of what seemed to me an unjustified attempt to extend prison rules and Prison Service Instructions (PSIs) to cover prisoners’ loved ones in their online activities outside of prison walls.

Given that this social media prohibition first appeared on the official GOV.UK website in December, my concern was that prisoners’ relatives and supporters might be intimidated from passing on information provided by those who are behind bars. I sensed an implied, if unspecified, threat of legal sanctions or other types of retribution against either prisoners or their family members – or perhaps both.

In particular, I was worried about possible impact on the continued use of social media platforms by those campaigning against miscarriages of justice or by prison bloggers who write out their posts by hand and then send them out to be typed up. This activity is currently permitted according to the rules set out in PSI 37/2010: Prisoners’ Access to the Media.

This is an especially sensitive issue given the past struggles of other prisoners – such as Ben Gunn and Adam Mac – to maintain blogs that play a vital role in bridging the vast information gap between their cells and the general public. I consider the hard won right of serving prisoners to blog (subject to usual prison security monitoring of material they send out by post) is just too precious to risk losing because of a faceless MOJ bureaucrat’s diktat.

Campaign tool

After I flagged the issue up on Twitter, things started to move very quickly. The #NoToGovesGag hashtag was retweeted by other penal reformers, criminologists, ex-prisoners, prisoners’ family members, lawyers and also by those who are just concerned over creeping official censorship of public debate about our dysfunctional prison system. Twitter is an ideal medium for reaching out to thousands of users, especially fellow campaigners, academics and those working in the media who share similar concerns.

At that point the national media became interested and several journalists, including Mark Leftly, the deputy political editor of The Independent on Sunday, got in touch with me and we discussed the issue. Mark took on the story and started investigating.

Within a matter of hours, the MoJ had beat a very hasty retreat and the offending paragraph had disappeared from the GOV.UK page to be replaced by a simple statement of fact: ‘Prisoners aren’t allowed to access social networking websites (eg Facebook or Twitter) while they’re in custody.’ No mention of any ban on what prisoners’ families, friends or supporters can post on any social media sites.

So what was the explanation that the Independent on Sunday managed to get out of the MoJ for this rapid retreat? Well, Mark Leftly was told that: “An inaccurate statement on GOV.UK regarding social media was corrected after being brought to our attention.” This story was published in the Independent of Sunday on 24 January.

Drugs & knife in a prison cell-fie

Although in general I don’t subscribe to the conspiracy school of thought, in this case I suspect that the MOJ was trying it on with prisoners’ families following widespread tabloid media coverage of prisoners posting so-called ‘cell-fies’ from behind bars using illicit smart phones. This is clearly a very sensitive subject for both politicians and civil servants, with questions now being asked by MPs in Parliament about such security failures.

Given the current levels of understaffing in our prisons, along with a rise in violence and drug use, the MOJ is particularly keen to emphasise that prisons remain under control of the authorities, even when the hard evidence leaking out might sometimes suggest otherwise. The bottom line is that photos taken inside jails by prisoners using smuggled phones and then posted online are a source of political embarrassment to both the MOJ and to the National Offender Management Service (NOMS).

There are various issues still unresolved, however. For example, why should a serving prisoner’s social media accounts be automatically shut down by Facebook or Twitter when no new criminal offence – such as harassment or contacting victims in breach of an order – has been proven? Social media is now such an embedded part of everyday life that I believe deletion of accounts, including years of archived photos, messages, conversations and contact lists, should only be a final resort once actual misuse, breaches of prison rules or online criminal activity has been proven.

Quick to delete without evidence?

Anyone who has been involved in prison adjudications knows that what passes as evidence and due process inside often bears little resemblance to most people’s concepts of fairness or natural justice. How can any prisoner whose social media accounts are still kept active by loved ones prove to a governor or an external adjudicator (a judge) that he or she hasn’t been making use of an illicit mobile phone from behind a cell door? In effect, the usual burden of proof is being reversed for those in custody. There are very real consequences, including loss of privileges or other punishments, as well as routine cell searches, strip searches and other forms of daily harassment.

At internal adjudications conducted by a governor grade (as opposed to those presided over by a judge), prisoners are only able to request an adjournment to get legal advice (often 10 minutes on a prison pay phone) and can also be denied professional representation at the presiding governor’s discretion. Could a members of a prisoner’s family give evidence at such a hearing in order to rebut a charge?

Online social media death:
deletion by Facebook

As things stand, it appears from recent cases that Facebook doesn’t require any real proof beyond a complaint from HMPS to push the nuclear button and delete an entire social media profile, regardless of whether the account is being misused or not. Although Facebook’s current terms and conditions do prohibit people convicted of sexual offences from having an account, plenty of other prisoners inside for a wide range of other types of crime do have profiles and aren’t subject to such exclusions.

It remains to be seen whether pressure from the hardline law and order lobby (or more likely politicians keen to prove their ‘tough on criminals’ credentials) will eventually campaign for serving prisoners to undergo a form of ‘social media death’ upon conviction and incarceration, including total deletion of their Facebook, Twitter, Tumblr and Snapchat accounts. Could it ever become a general licence condition for prisoners released at the halfway point of their sentences to keep off social media services or face a breach and a return to custody, even when they haven’t been convicted of any type of internet offences?

Silencing prisoners' voices

And what of those prisoners who continue to maintain their innocence from behind bars? Will the MOJ or NOMS launch a crackdown aimed at censoring the content of these sites, either directly or indirectly? Even if prisoners’ families and friends are now firmly out of the clutches of an unlawful social media ban, there is nothing to prevent HMPS complaining to Facebook, Twitter, YouTube or to any other website hosting services that they object to the use of contributions originating from serving prisoners.

While such pressure might well be open to legal challenge, these court actions cost money which most prisoners’ families or supporters simply don’t have. It can be all too easy for the powerful to intimidate and silence the powerless and vulnerable.

The #NoToGovesGag campaign gave us a very quick win. It cost nothing beyond people’s time and some very welcome national media interest. However, next time we prison campaigners may not be so fortunate. If we really value informed comment from serving prisoners on blogs or via Twitter, or online innocence campaigns that actively involve those rotting behind bars for crimes they may not have committed, then all of us need to be vigilant when it comes to underhand attempts by the MOJ or NOMS to silence prisoners’ voices.