Kenneth Clarke's media gag on prisoners is unlawful

Kenneth Clarke's media gag on prisoners is unlawful

Prison Service Instruction 37/2010 is titled "Prisoners’ Access to the Media". A more apt title would be denying prisoners' access to the media! The PSI flies in the face of R (on the application of) Hirst v Secretary of State for the Home Department, CO/3189/2001.

1.2 Prisoners can communicate with the media in three ways:

Written correspondence – most prisoners will be able to contact the media through letters only. Prisoners do not need permission from the Governor to send or receive letters from the media but there are restrictions on what can be sent out, as outlined in paragraph 2.2 below;

Telephone – if a prisoner wishes to contact the media by telephone and the call is intended or likely to be published or broadcast by radio or television or posted on the Internet the prisoner must first apply in writing to the Governor for permission. The Governor must decide whether to permit the application in liaison with Press Office. This will only be allowed in exceptional circumstances where the prisoner intends to make serious representations about matters of legitimate public interest affecting prisoners, including where appropriate an alleged miscarriage of justice in the prisoners’ own case, and where the other criteria in Section 3 are met;

Visits – prisoners must apply in writing to the Governor if they wish to receive a visit from a member of the media and copies of such requests must be passed immediately to Press Office under cover of the form at Annex F. Decisions on such requests will now, once the Governor has given his or her view, be made centrally on behalf of the Secretary of State. Press Office who will consult Ministers where appropriate.

Visits by the media will only be allowed in exceptional circumstances, where there is a need for a face to face interview because:

(i) the prisoner claims a miscarriage of justice and requires the assistance of a journalist to challenge the safety of their conviction or sentence;

or

(ii) there is some other sufficiently strong public interest in the issue sought to be raised during the visit and the assistance of a particular journalist is needed. See Section 4.4 – 4.16 for guidance on how these criteria may be met.

Governors must consider written applications on their merits taking account of the criteria set out in the PSI and advice of Press Office should be sought if it is unclear whether the prisoner fulfils the listed criteria. In all applications involving requests for face-to face interviews the Governor will have to provide Press Office with any relevant information and their view on whether the interview should take place so that the decision can be made centrally on behalf of the Secretary of State – details are set out in Section 4.

1.3 Governors must ensure that systems are in place to alert prisoners to this policy on communication with the media and to ensure they are aware that a breach of these rules may lead to disciplinary proceedings. Where possible, establishments should consider incorporating this information in to induction procedures, for example informing prisoners of the telephone restrictions by including this within the Pinphone Compact signed by prisoners.

1.4 Where Governors are concerned that a prisoner may contact the media while on Release on Temporary Licence (ROTL), they can on an individual basis include a prohibition on such contact as part of the prisoner’s licence conditions.

1.5 Where journalists request to speak to or visit a named prisoner for purposes other than those described in Sections 3 and 4, for example to do a general article on prison life and conditions, or to examine issues such as drugs misuse, they should be directed to Press Office.

It gets a whole lot worse the further one reads through the document. Clearly, it is susceptible to judicial review.