R (Alexander) v Secretary of State for Justice

The Claimant was a prisoner serving a mandatory life sentence for his father’s murder.  He had always maintained his innocence.  The Claimant sought permission from the prison governor to participate in a recorded telephone interview with a production company that wanted to produce a podcast about the crime.  In the producers’ view, interpolating the Claimant’s voice into the podcast would be an essential element as it would increase the chances of getting funding to produce the podcast and make it more engaging for listeners.  In the Claimant’s view, the podcast was necessary to increase the chances of bringing to light new evidence that might allow him to challenge the safety of his conviction.  Both the producers and the Claimant stated their willingness to be subject to various constraints in the production and pre-publication review of the interview if it took place.

The prison governor indicated initially that he was content to let the interview take place.  However, having consulted with the Ministry of Justice Press Office, the governor refused the application on the basis that the Claimant had failed to fulfil the requisite criteria in PSI 37/2010; namely, he had not shown the necessary urgency that was, he believed, required to satisfy the suitability criterion, and there was a risk of distress to victims and/or outrage to public sensibilities if the interview was permitted to take place.

The Claimant, who had already issued a claim for judicial review of an earlier decision to not permit the interview to take place, expanded his claim to encompass the latter decision.

Whether the governor’s latter decision was unlawful in that it: (i) was irrational; and/or (ii) amounted to a disproportionate interference with the Claimant’s Article 10 rights.

Andrew Baker J held that the governor’s decision was irrational and quashed it, to be remitted to the governor for reconsideration.

The governor had misdirected himself by concluding that urgency was a required part of the test for showing that telephone communication was the most suitable method of communication.  That misdirection, in turn, caused the governor to fail to consider the request on its merits, including the ability of the podcast being produced to give rise to new lines of enquiry, and the producers’ professional journalistic opinions that the Claimant’s voice would be an essential part of any podcast.

Moreover, the governor had placed reliance on distress to victims when there were no identifiable victims who could be caused distress, and the facts of the Claimant’s father’s death were not such that permitting the Claimant to speak with the producers under controlled conditions about his alleged miscarriage of justice gave rise to a risk of outrage to public sensibilities.

Having concluded that the decision was irrational, Andrew Baker J declined to also consider whether the decision constituted an unlawful interference with the Claimant’s Article 10 rights.

The Judge also refused the Claimant’s invitation to give declamatory or mandatory relief, as he had not heard sufficient evidence to do so and the decision was going to be remitted to the prison governor who would have the benefit of the court’s analysis of the proper interpretation of PSI 37/2010.

This decision provides useful guidance on the proper construction of PSI 37/2010, particularly as it pertains to telephone interview with prisoners.  It demonstrates that prison governors must engage with the facts before them, rather than relying on broad assumptions of, for example, a risk of outrage to public sensibilities.

The decision is also interesting for Andrew Baker J’s unwillingness to undertake a proportionality assessment in place of the governor.  From the judgment, it is clear that the Judge believed he had given the governor (and Ministry of Justice Press Office) a sufficient steer on the relevant and irrelevant considerations to be taken into account in the Claimant’s case.