Ali v Secretary of State for Justice

The claimant, a Kurdish Sorani-speaking life-sentenced prisoner at HMP Full Sutton, challenged the prison service policy restricting items sent in by family and friends and the refusal to allow books, DVDs and CDs in Kurdish. The court accepted the defendant's legitimate aim of maintaining prison security and preventing illicit material entering the estate as set out in PSI 30/2013, but considered whether the policy or its application was unlawful for being a blanket prohibition or for failing to exercise discretion.

The court followed the recent decision in R (oao Barbara Gordon-Jones) v SSJ [2014] EWHC 3997 (Admin) in relation to books and held that the claimant succeeded on that head. The court held, however, that the policy as applied to DVDs and CDs involved an available discretion, that the governor had recognised and exercised that discretion, and that the decision not to allow the discs did not contain public law error given the security and resource considerations.

The claimant's public law challenge under a blanket-policy/inflexibility ground succeeded in respect of books but failed in respect of DVDs and CDs. The Equality Act 2010 s149 challenge was rejected.

The claimant, Mohammed Ali, a Kurdish Sorani-speaking Category A prisoner serving a life sentence, brought judicial review proceedings after HMP Full Sutton refused to allow a package from family containing Kurdish-language books, DVDs and CDs. The prison relied on a policy in PSI 30/2013 that generally requires items to be obtained from approved suppliers and limits items sent in by families to prevent illicit material entering the establishment.

• Nature of the claim: judicial review challenging the lawfulness of the policy as applied and seeking relief in relation to the refusal to permit the materials sent by family (books, DVDs, CDs), and asserting a public sector equality duty breach under s149 Equality Act 2010.
• Procedural posture: substantive hearing October 2014 with further submissions invited after Collins J's decision in Gordon-Jones [2014] EWHC 3997 (Admin). The matter proceeded on the basis of written and oral evidence and submissions.
• Issues framed: (i) whether the prison's policy operated as an unlawful blanket ban or was unlawfully inflexible; (ii) whether, even if lawful in principle, the policy had been unlawfully applied to the claimant; and (iii) whether the defendant breached the public sector equality duty under s149 of the Equality Act 2010.

The court reasoned that for books the recent Gordon-Jones decision established a strong presumption in favour of allowing books sent by family unless specific security-based grounds justified refusal, and on that basis the claim succeeded in relation to books. With respect to DVDs and CDs the court examined the prison governor's evidence showing the existence of a discretion and the reasons for refusing to exercise it in this case: the high security context of HMP Full Sutton, the risk that discs may contain hidden or encrypted material requiring technical analysis, and limited translation resources. The judge concluded that those considerations were lawful and that there was no public law error in the exercise of discretion. Finally, the court found no identifiable public law error in relation to the s149 Equality Act challenge and rejected that ground.

The court ordered that the defendant pay the claimant's costs, to be assessed if not agreed.

This first-instance claim succeeded in part and failed in part. The court held that the claimant succeeded in relation to books, following the reasoning in R (oao Barbara Gordon-Jones) v SSJ [2014] EWHC 3997 (Admin). The court held that there was no public law error in the prison's policy or its application to DVDs and CDs because a discretion existed, was acknowledged and was lawfully exercised in light of security and resource considerations. The court also dismissed the claimant's s149 Equality Act 2010 challenge.