Prisoner book ban judgement: Grayling’s views found to be ‘absurd’ and ‘strange’
We've gone through the judgement so you don't have to – and it is exceptionally bad news for Chris Grayling.
Mr Justice Collins, in delivering the judgement that rules that the restrictions on prisoners' access to books are unlawful, reserves special criticism for the justice secretary.
He notes that Grayling said on March 29th that prisoners were able to order books from Amazon using their prison earnings or money sent in by relatives.
"This I am bound to say was somewhat misleading," the judge states, "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.
The claimant referred to comments by deputy prime minister Nick Clegg that a ban on sending books to prisoners "would be ridiculous" and "outrageous". It was suggested that the clearly-stated principle that prisoners should be encouraged to read for education and rehabilitational purposes clashed with reality.
The judge noted there's a loophole in prison rules which could allow the governor to bypass the incentives and earned privileges scheme's (IEP) "virtual ban". But they were dismissed by Mr Justice Collins, who said they "do not seem to me to have any relevance".
A further loophole, which allows items to be permitted "in exceptional circumstances", was also examined. Did that apply to the case in question?
To find out we need to look at the judgement in a little more detail.
The prisoner who brought the claim, Mr Justice Collins explains, was serving an indefinite sentence. She's a 56-year-old woman who was serving an indefinite sentence for a number of offences, including arson with intent to endanger life. Back in March this year she saw a neurologist because of lapses of memory resulting from epilepsy. At the time she was reading books by Alan Bennett, Monica Ali and the dialogues of Marcus Aurelius. She said she loved reading books. "She cannot stress how important they are to her," Mr Justice Collins noted. "Thus any restrictions on her ability to have available books which are not easily obtainable through the prison library operate particularly harshly."
The prisoner was serving her time at HM Prison Send, a closed category women's prison in Surrey. It has two libraries – and what Mr Justice Collins suspects is one of the best prison library services in the country. All the books requested by the prisoner were obtained for her. And it was pointed out there is reasonable access to the library and that it's open at sufficient times.
All of these points served to undermine the suggestion that what the prisoner faced was a ban on books, Mr Justice Collins found.
A 'ban' isn't quite the right way of describing it. But what he did find was "a severe restriction on possession or acquisition of books which a prisoner can treat as his or her own". He noted not all prisons are as good as Send at providing a decent library service, blaming cuts for reduced staffing levels. Above all, he stated that "the IEP as now operated seems to fail to recognise that it is deprivation of liberty that is the penalty imposed and that any further restrictions must be fully justified".
On April 9th 2014 the prisoner's request for five books was refused. The books were Brewer's Dictionary of Phrase and Fable, The Penguin Book of Saints, Elephant Bangs Train by William Kotwingle, Billy Bathgate by EL Doctorow and Portnoy's Complaint by Philip Roth.
These would have exceeded the prisoner's allocation of 12 books – despite the fact the prisoner had more than enough room for them in terms of the amount of space the permitted items for her cell would have taken up. "That seemed to me absurd," the judge said.
Reports from the courtroom suggest it was this comment during evidence hearings that prompted the MoJ's retreat on the issue earlier this year. Government lawyers offered to take the judge's view back to their "client" immediately. Mr Justice Collins reportedly suggested this was a good idea, and the MoJ quickly changed the rules.
In his judgement today he adds he is "pleased" that the MoJ subsequently amended the rules to allow more than 12 books.
This was all well and good. But it didn't change the fact that 'exceptional circumstances' were still required to allow the books to come into the prisoner's possession in the first place.
And it is in assessing the lawfulness of this that Mr Justice Collins makes some of his most striking comments. His judgement here assesses the difference between having access to books and actually possessing them yourself. They go to the heart of what books are for. They are an affirmation of literature and culture and knowledge.
"What in my view has not been taken into account is that for many there is a need to possess particular books to be treated as their own property," he states in paragraph 36 of the judgement.
"Some books are used as references, such as dictionaries' Brewer's Dictionary may well fall into that category. Others are regarded as those which need to be available to be reread or, such as for example a compendium of a particular author's works, to be dipped into frequently. It is possession which can matter as much as access. It is difficult to follow why books are included in IEP facilities when their availability to prisoners is regarded to be so important. There is no ban on books in the IEP but the severity of the restrictions clearly may prevent acquisition and possession."
Then comes the critical part of his ruling. He makes clear that "in the circumstances" the virtual ban on books is contrary to the intentions expressed by Grayling. Mr Justice Collins says he can't see any good reason "in the light of the importance of books for prisoners" to restrict books so harshly. Because "an action taken by a public body must not be such as fails to promote the policy and objects of the enabling power", the policy is judged to be "unlawful".
He later adds that even the name of the IEP is strange. "In the light of the statement made about the importance of books and the absence of any intention to prevent or interfere unreasonably with prisoners being able to have access to books, to refer to them as a privilege is strange," the judge says.
This is a triumph for campaigners but, more, it is a triumph for the lawyers who have secured this victory. Today's judgement vindicates those who fought against the prisoner book ban – and leaves the MoJ embarrassed and defeated over one of its most unnecessarily harsh policies.