Mark Alexander, R (on the application of) v Secretary of State for Justice

A prison policy allowing telephone contact with broadcast media only where specified criteria are met must be applied according to its wording. Urgency is an example of circumstances in which a telephone call may be the most suitable method of communication, not an additional prerequisite. Relevant expert journalistic evidence cannot be dismissed as irrelevant. In assessing possible distress to victims or public outrage, the decision-maker must consider the particular crime, identifiable victims, the purpose and conditions of the proposed communication, and its proposed content. A bare conclusion that speaking by telephone would outrage the public is irrational. Where the decision is materially misdirected, the court should ordinarily quash it and remit the matter for fresh consideration rather than substitute its own proportionality assessment without a properly directed decision-maker and adequate factual investigation.

The claimant, a serving prisoner convicted of murdering his father, sought judicial review of the Governor’s refusal to permit a telephone interview with an investigative journalist. The interview was intended for a podcast examining the conviction and alleged miscarriage of justice.

The claim concerned the application and lawfulness of PSI 37/2010, which governed prisoners’ access to the media. The Governor concluded that a telephone conversation was not the most suitable method of communication because the request was not urgent and that the interview might cause distress to victims and outrage to public sensibilities. The claimant challenged those conclusions under domestic public law and Article 10 ECHR.

The court granted relief on the application of the policy and considered the broader Article 10 and blanket-ban arguments only to the extent necessary.

1. Claim allowed in part. The December 2021 refusal letter was quashed. The Governor was required to reconsider the claimant’s request afresh. No mandatory order or declaration requiring consent was granted.
2. PSI 37/2010 required the Governor to decide whether a telephone conversation was the most suitable method of communication. The policy identified urgency as an example, not a prerequisite. By treating urgency as necessary, the Governor misdirected himself and failed to consider the substance of the request, including the journalist’s evidence that a telephone interview was essential to the proposed programme.
3. The Governor was not bound to accept that evidence without question, but it could not rationally be treated as irrelevant. It was central to whether telephone contact was more suitable than written correspondence.
4. Criterion [iii] required an assessment of whether distress to victims or outrage to public sensibilities would result, bearing in mind the purpose, content and controlled conditions of the proposed interview. The criterion concerned identifiable direct or indirect victims of the particular crime, not victims in an abstract or generic sense. The conclusion that speaking by telephone with a prisoner convicted of murdering his father would, without more, outrage public sensibilities was irrational.
5. Article 10 proportionality was not a matter of administrative discretion, but the court was required to test the factual basis for the decision and could give considerable weight to a properly directed decision-maker’s expert judgment. Here, the Governor had not been properly directed. The proceedings also did not provide a proper basis for the court to conduct a de novo proportionality assessment.
6. The policy did not impose, on its proper reading, a blanket ban on telephone contact with broadcast media, and the evidence did not establish a de facto blanket ban. The wider challenge to the policy therefore did not require determination.

• Court of Appeal: Bean LJ granted permission to apply for judicial review after permission had been refused below, because the issues concerning PSI 37/2010 were not entirely straightforward.
• High Court (Administrative Court): The claim was allowed on the application of PSI 37/2010. The refusal letter was quashed, with no further relief.