Ali v Secretary of State for Justice

A prison policy restricting material sent by family or friends is unlawful only if it operates without any genuine discretion to make exceptions. Security and resource considerations are relevant to the exercise of that discretion and may, in an appropriate case, be decisive. The court should avoid micro-managing operational prison decisions. A distinct approach may properly apply to books and to CDs or DVDs, having regard to the different security and translation issues involved.

The claimant, a life prisoner at a high-security prison, sought judicial review of decisions refusing to allow Kurdish-language books, CDs and DVDs sent by family members. He alleged that the prison operated an inflexible blanket policy, had unlawfully exercised its discretion, and breached the duty under section 149 of the Equality Act 2010.

After the hearing, the court invited submissions concerning R (on the application of Gordon-Jones) v Secretary of State for Justice and the Governor of HMP Send, [2014] EWHC 3997 (Admin). The defendant conceded the books issue because the relevant policy was being revised and a fresh decision had been made. The remaining issue concerned the CDs and DVDs.

1. The claim succeeded in relation to books. The defendant accepted that the claimant’s case should be reconsidered under a revised policy following Gordon-Jones, and agreed to pay the claimant’s reasonable costs.

2. The claim failed in relation to CDs and DVDs. The evidence did not establish a blanket prohibition. Although there was a presumption against items being sent by family or friends, the Governor retained a discretion to permit such material in an appropriate case. The policy therefore did not fail for lack of flexibility.

3. The Governor had recognised the discretion and considered whether to exercise it. The reasons for refusal included the high-security nature of the prison, the possibility of encrypted, hidden or coded messages, the need for competent technical analysis, and the lack of suitable translation facilities for audiovisual material.

4. Security and resources could not automatically determine the issue, but they were legitimate considerations and could be decisive in some cases. The court also had to avoid micro-managing decisions within the prison service. On the evidence, the exercise of discretion disclosed no public law error.

5. The challenge under section 149 of the Equality Act 2010 was rejected. The claimant had not identified a specific public law error arising from the alleged breach.

6. The claim consequently succeeded in respect of books, but failed in respect of CDs and DVDs and on the Equality Act ground. The defendant was to pay the claimant’s costs, to be assessed if not agreed.

Not an appeal. The judgment determined a first-instance judicial review claim.