Time for One More Whopper, Chris?

As the Ministry of Justice (MOJ) surveys the wreckage of Chris Grayling’s credibility following yesterday’s trouncing by the High Court of the notorious ban on books being posted in to prisoners, its latest official statements have contained a new ‘justification’ for the policy that has not hitherto been advanced. This reflects the Ministry’s tried and tested strategy of coming up with ever more creative explanations for indefensible actions after the event.

High Court: a train crash for MOJ

The latest claim is that the ban on parcels for prisoners – which included books and other literature being sent by family, friends and external organisations such as distance learning colleges – is justified on the grounds that it is designed to exclude “extremist material”. This is a new tack because until yesterday the MOJ’s official line has been that the blanket ban is necessary to prevent drugs and other contraband being smuggled into prisons. 

What these increasingly desperate claims really reveal is the fact that no-one in either the MOJ or the National Offender Management Service (NOMS) – which runs the prison system – actually has a clue as to why the revised Incentive and Earned Privileges (IEP) scheme that came into effect on 1 September 2013 banned the posting in of books. That is almost certainly because the policy wonk who drew up the revision to the existing policies hadn’t got the first idea about prisons or how they function. This has been a classic case that has highlighted the massive gulf that exists between the desk jockeys down in Whitehall and prison staff, particularly governors, who actually have to run our jails on a day-to-day basis and whose hands are now almost completely tied by MOJ red tape.

Governors: hands tied by IEP

The official statement from the MOJ referring to “extremist material” has been rolled out in a desperate bid to convince the general public that the revised IEP policy was really all about public protection at a time when there is a widespread anxiety about both international and domestic terrorism. It has parallels with Mr Grayling’s equally bogus claim when giving evidence to the Parliamentary Committee on Justice that the current problem of overcrowding in prisons can all be attributed to more sex offenders being sent down following the allegations made against the late Jimmy Savile. It can’t.  

These populist manoeuvres reflect the lack of hard evidence that underpins almost anything that passes as prisons policy these days. In the case of the “extremist material” claim, it relies on ordinary folk not being aware of the fact that there is already an extensive list of prohibited literature contained in the Prison Service’s Public Protection Manual, as well as detailed provisions contained in the National Security Framework. The list already expressly bans all extremist or racist literature, along with much material that is sexually explicit. Such policies have been in place for years for reasons that are understandable.

The revised IEP scheme ban on sending in books by post has nothing whatsoever to do with extremist material. The MOJ statement is utterly deceitful and an attempt to mislead the public following the High Court’s demolition of what was a vindictive, ideologically-motivated policy that actively undermined rehabilitation through education. In fact, the restrictions have had a severely detrimental impact on one of NOMS’ own pathway objectives to reduce reoffending, namely education. For this reason alone, it was hardly surprising that the High Court has taken the view that the blanket ban was both irrational and unlawful.

Mr Justice Collins: good judgment

The actual High Court judgment by Mr Justice Collins is well worth reading in full (see here). In it, the judge dissects the IEP scheme and highlights a range of inconsistencies and realities that impact on the accessibility of books for prisoners. He makes the not unreasonable point that the limits on the weekly spends by an individual prisoner, including cash sent in by family and friends, imposes severe restrictions on the purchase of books: 

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.

Interestingly, although Mr Justice Collins acknowledged that the libraries at HMP Send, where the prisoner making the application for judicial review is held, were good he also pointed out that the situation at other establishments was not: 

While the library at HMP Send is good and there is reasonable access, the same cannot be said of all prisons. Economies which have resulted in staffing levels being reduced have worsened the situation and financial restrictions are likely to mean that purchases of particular books which will be unlikely to appeal to prisoners other than the one requesting them will not be approved. A statement from the Prisoners Education Trust includes statements from prisoners who are studying for particular qualifications who needed to possess books. While I recognise there may be an exception for accepted educational books (subject to the 12 limit) the ability to access what is needed from family and friends is most important.

HMP Send: good libraries

The judgment also demolished the security argument as being the key issue. As Mr Justice Collins observed in paragraph 27: “the reason given for the restriction on books is the IEP, not security which could have been included.” In other words, at a late stage the MOJ was trying to introduce new justifications for its policies that weren’t originally being argued. Judges generally don’t like that sort of thing. It smacks of desperation by a defendant when the outcome of the case is looking grim.

When it comes to the infamous “12 book limit” that a prisoner could have in possession at any one time – including books borrowed from the prison library – by the time the High Court judgment had been handed down the MOJ had done a timely U-turn by removing this arbitrary restriction. However, Mr Justice Collins was still pretty scathing in his comments about this particular rule and its impact on prisoners’ access to books.

Another important issue raised was the fact that in most prisons in England and Wales, perhaps all, the only approved supplier that prisoners can order from (via the prison which usually adds on an administrative fee of 50p per item), is Amazon.co.uk. While sourcing books from a single approved supplier might be justified on the grounds of security, there is a wider question of whether Amazon – which is currently facing an inquiry into its corporate tax affairs across the European Union – is an appropriate holder of this state monopoly (see BBC story: Amazon faces European Union tax avoidance investigation). Of course, it’s also important to note that Amazon has robustly denied any wrongdoing and the EU probe is still ongoing.

Plenty of books, but how about access?

However, the fatal flaw in the MOJ’s defence of its IEP policy on books was the fact that ministers have repeatedly “accepted the importance of books for prisoners and their rehabilitation” while imposing policies that, in their actual application, do impose severe restrictions on prisoners’ access to books, particularly at a time when staff shortages and budgetary restraints are having a very negative impact on prison libraries. A library that is all but inaccessible to cons isn’t really offering much of a service, a point that this blog has been arguing for many months.

Mr Justice Collins’ sensible and balanced judgment at the conclusion of this High Court case is one of the main reasons that Mr Grayling and his ilk hate and despise the whole process of judicial review. That is why the coalition government is working so hard to restrict access to justice for both ordinary people and campaigning organisations, as well as vastly increasing the costs so that judicial scrutiny of bizarre or unlawful decisions will be beyond the means of all but the wealthy.

All authoritarian regimes start by targeting access to justice because no one in power likes having their decisions questioned or challenged. In essence, it’s an ideological battle over judicial scrutiny of policies and decisions that can have a profound impact on the lives of millions of ordinary people, most of whom lack the financial resources to launch legal action. It’s worth noting in this case that the prisoner who brought this action, Dr Barbara Gordon-Jones, was being represented on a pro bono basis – including a legal team that featured a QC. While these lawyers are to be commended for their unpaid efforts, this is really not how justice should be administered in a mature democracy.

Education: reduces reoffending

Doubtless the outcome of the judicial review has not been well received in the MOJ, especially given the key role that has been played by prison reform campaigners such as the Howard League for Penal Reform in raising public awareness of the situation. Mr Grayling has repeatedly demonstrated his intense dislike for this organisation. He previously blocked access to prisoners (both serving and on released on licence) for researchers from the Howard League’s Commission investigating sexual activities in prison, including rape and sexual assaults of prisoners (see my blog post here). 

Team Grayling has waged a relentless campaign against anyone who presumes to criticise its hellish and vindictive vision of prison, even when these draconian policies directly undermine rehabilitation and the Prison Service's own declared mission to reduce reoffending. Although the latest train crash in the High Court will be an embarrassment for ‘Crisis’ Chris, it isn’t the first and probably won’t be the last. The whole issue of the partial privatisation of the probation system is next on the High Court’s agenda.

Jeremy Thorpe: acquitted

In a week that saw the death of former Liberal Party leader Jeremy Thorpe, I think I can be allowed a famous quote from his criminal trial in 1979 on charges of conspiracy to murder – of which he was acquitted. The late Mr Justice Cantley was presiding and former MP Peter Bessell was in the witness box giving evidence for the prosecution. It was almost lunchtime and the barrister engaged in cross-examination enquired whether the court should rise. Very unimpressed by Mr Bessell’s testimony, Mr Justice Cantley uttered the immortal words: “I think we have time for one more whopper”.  

One can only speculate how the MOJ would have faired at that judge’s hands. Banning the posting in of books because of drugs, then other types of contraband… and now the latest excuse is to keep out extremist material. Hmmm... Time for one more whopper, Chris?