Gordon-Jones, R (on the application of) v The Secretary of State for Justice & Ano

A prison policy is unlawful insofar as its practical effect defeats the policy’s expressed purpose. Restrictions on prisoners’ books must be justified by legitimate controls, such as volumetric limits, parcel-frequency limits and security requirements. Access through a prison library does not necessarily replace the need to possess particular books as personal property. Books could not lawfully be treated as earnable privileges within the Incentives and Earned Privileges scheme where that substantially impeded acquisition and possession, contrary to the stated rehabilitative importance of reading. The policy did not unlawfully fetter governors’ discretion, and the Article 8 and public sector equality duty challenges added nothing or were not established.

The claimant, a prisoner serving an indefinite sentence, challenged Prison Service Instruction 30/2013 insofar as it restricted prisoners’ ability to receive, acquire and possess books. The scheme limited items sent by friends or relatives, imposed a usual maximum of 12 books, and linked private cash and purchasing opportunities to incentive levels. The claimant also challenged the governor’s refusal to permit specified books and alleged breaches of Article 8 of the European Convention on Human Rights and the public sector equality duty.

The court first considered delay and permission, then determined whether the restrictions were lawful and whether the governor had unlawfully fettered his discretion.

1. Permission and delay. The court granted permission, extending time if necessary. Whether time runs from implementation of a policy or from an individual decision depends on the circumstances, including the claimant’s awareness of the policy and its possible effect.
2. Books and the IEP scheme. Prison Rules 1999, rules 8 and 33, permitted systems of privileges and required prisoners to be allowed library books. Those provisions did not authorise restrictions whose practical effect was inconsistent with the acknowledged importance of reading and rehabilitation. Library access was not sufficient in every case. Possession of particular books could matter independently because books might be used for reference, rereading or rehabilitation, and library availability could be limited.
3. The policy’s restrictions on receiving and acquiring books went beyond what was required by volumetric control and reasonable measures concerning parcel frequency and security. Its effect was contrary to the expressed intention and objectives of the policy. Applying the principle in Padfield v Minister of Agriculture, Fisheries and Food 1968 AC997, the policy was unlawful insofar as it included books within the IEP scheme.
4. The usual limit of 12 books was not itself unreasonable, subject to the volumetric control limit and the governor’s discretion to permit additional books. The policy guidance did not unlawfully fetter that discretion; whether a discretion is fettered depends on the power under which it is exercised.
5. The Article 8 claim added nothing. If the policy were lawful, the interference would be proportionate; if unlawful, Article 8 was unnecessary. The public sector equality duty was not breached because relevant equality issues had been considered and the scheme required flexibility for special needs.
6. The second defendant acted lawfully by following the policy and was not required to determine its legality. The claim succeeded against the first defendant only to the extent that PSI 30/2013 included books in IEP schemes. The court indicated that removing books from earnable privileges and from the general prohibition on items sent or brought in should suffice.

The claim was lodged on 6 May 2014. Lang J ordered a rolled-up hearing because of the delay issue. The Administrative Court granted permission and determined the substantive judicial review.