Judge orders Grayling to amend government policy and says reference to books as a ‘privilege’ was ‘strange’ and ‘absurd’

The justice secretary, Chris Grayling, has fallen foul of yet another humiliating defeat in the High Court, just days after the government’s successful vote in the House of Commons to reform judicial review.

The ‘book ban’ was introduced in November 2013 in England and Wales, and was part of the ‘Incentives and Earned Privileges Scheme’ which aimed to limit what prisoners could receive in parcels, in an attempt to crack down on drugs being smuggled into the prison system.

Writing on the politics.co.uk website in March, Grayling said of the scheme: “Let’s be clear about one thing: prisoners’ access to reading material is not being curtailed. We believe offenders need to behave well and engage in their own rehabilitation if they are to earn privileges and incentives.”

While prisoners are able to read books borrowed from a prison library, the legal challenge brought by Barbara Gordon-Jones, a prisoner currently serving a life sentence, argued that books sent to inmates can be the key to rehabilitation as prison libraries are often inadequately stocked or lacking in staff to assist inmates.

The government scheme led to a high-profile campaign, led by the Howard League for Penal Reform, which attracted support from a number of leading authors and actors all opposed to the restrictions on prisoner reading material.

An open letter, written in March by the justice secretary to the poet laureate, Carol Ann Duffy, saw Grayling state that prisoners were able to order books from Amazon using their prison earnings or, alternatively, money sent in by relatives.

Referencing this letter in his judgment, Mr Justice Collins openly criticised the Lord Chancellor’s statement: “This I am bound to say was somewhat misleading since it seemed to indicate that money sent in could be used with no constraints. In reality, that is not so since a prisoner cannot spend more than his or her weekly limit, however much is sent in by relatives or friends. Under the ‘basic’ tier, that is just £4 a week. Even under the top ‘enhanced’ tier it amounts to just £25.50.”

‘Absurd argument’

In relation to the prison rules that provides for a maximum of 12 books to be held in the possession of an inmate at any one time, the judge said: “Those provisions in combination only apparently permitted an exception when the property sought would mean the volumetric limit was exceeded so that there was no discretion to exceed 12 books unless the volumetric limit was thereby exceeded. That seemed to me to be absurd and I so indicated in argument.”

The judge continued: “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 frequency of parcels and security considerations.

“A book may not only be one which a prisoner may want to read but may be very useful or indeed necessary as part of rehabilitation. In the light of the statement made about the importance of books… to refer to them as a privilege is strange.”

‘Fruitless appeal’

In a string of tweets following the court ruling, CEO of the Howard League for Penal Reform, Frances Crook, said it was “a good day for penal reform” and that “books are now a right in prison, not a privilege. The shocking thing is that a government ministry should ever have restricted books in the first place”.

She continued by saying the judgment “shows importance of judicial review, there must be a balance to lunatic decisions by government”, and added that she hoped the MoJ “doesn’t waste more public money in a fruitless appeal”.

A spokesperson for the Prison Service said: “This is a surprising judgment. There never was a specific ban on books, and the restrictions on parcels have been in existence across most of the prison estate for many years and for very good reason. Prisoners have access to the same public library service as the rest of us, and can buy books through the prison shop.

“We are considering how best to fulfil the ruling of the court. However, we are clear that we will not do anything that would create a new conduit for smuggling drugs and extremist materials into our prisons.”

Commenting on the government’s defeat, shadow justice secretary, Sadiq Khan said: “The ban on sending books to prisoners was always an absurd policy. It had nothing to do with punishing and reforming prisoners but was an example of David Cameron’s government’s sloppy policy making. This is a victory for all those who campaigned against the ban and the government should abandon the ludicrous policy with immediate effect.

“What’s more, the absurdity of this policy has been exposed by judicial review, the very mechanism Chris Grayling is trying to neuter with his Criminal Justice and Courts Bill. Judicial review is a critical constitutional tool by which unlawful actions by governments are exposed. The Tory-led government’s shameful attack on judicial review would insulate them from challenge, place them above the law and prevent injustices from being rectified.”

At the beginning of the week, amendments made by the House of Lords relating to reform of judicial review in the Criminal Justice and Courts Bill were rejected by the government.

Speaking during the debate, the Lord Chancellor said: “Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in government and parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected government in taking decisions over the essential interests of this country.”

The full High Court judgment can be viewed here.

This article was first published in the Solicitors Journal on 5 December 2014 and is reproduced with kind permission.