Under what circumstances can prisoners in UK prisons communicate with the press, and using what methods?   This isn’t an issue which raises its head very often, but it is a very interesting one, nonetheless.

The recent case of The King (on the application of Mark Alexander) v The Secretary of State for Justice, with Robin Eveleigh (as an Interested Party) gives us a rare insight.

Mr Alexander, the claimant, was convicted of murdering his father in 2010 and handed a life sentence with a minimum term of 16 years. He was 21 at the time of the murder and lived with his father.

However, he has always protested his innocence and there was no forensic evidence to connect him with the murder. At the time of his father’s murder, Mr Alexander was estranged from his mother, but his mother and grandmother now support his quest to prove his claim of innocence.

Mr Alexander has made several attempts to overturn his conviction, which have all been unsuccessful. He believes that his father had “a complex network of aliases” which were used in relation to mortgage, insurance, and credit card frauds, none of which formed part of the initial police investigation into his murder.

Since November 2020 Mr Alexander has wished to participate in a podcast project which would explore his claims of innocence and seek further evidence and information from the public.

As a starting point, upon conviction and the handing down of a custodial sentence, prisoners lose their right to communicate with any person outside prison. Contact with the outside world is therefore a privilege “operating by way of exception to a general rule”.

In order to participate in such communications with the press, a prisoner must make a formal request which is considered under PSI 37/2010, the Guidance which governs prisoners’ contact with journalists.

Mr Alexander made the request on the basis that:

1. In the producer of the podcast’s view, it was unlikely that the podcast would receive funding and be produced without being able to include Mr Alexander’s voice, as doing so would make it more engaging for listeners;
2. Mr Alexander believed the making and broadcast of the podcast was necessary in order to increase the chances of finding new evidence which could allow him to challenge the safety of his conviction; and
3. Both the producers and Mr Alexander were willing to be subject to the various necessary constraints and to a pre-publication review of the interview.

Having initially indicated that he would be willing to support the telephone interview taking place, the prison Governor refused the request on the basis that:

1. Mr Alexander had failed to satisfy the need for urgency, which the Governor believed was necessary to authorise the use of a telephone interview instead of written communication; and
2. There was a risk of distress to victims and/or outrage to public sensibilities if Mr Alexander was allowed to participate in a recorded telephone interview.

Mr Alexander commenced Judicial Review Proceedings in an attempt to overturn the prison Governor’s decision. In order to be successful, Mr Alexander would need to show that the decision was irrational and/or amounted to a disproportionate interference with his Article 10 right to Freedom of Expression.

Mr Justice Baker found that the prison Governor’s decision had been irrational and should be quashed.

In doing so, he noted that urgency is not a prerequisite of telephone contact with the media, although it is cited in the rules as one instance where a telephone conversation might be the most suitable method of communication.

The Governor therefore “misdirected” himself that urgency was a requirement which wrongly narrowed his focus, meaning he didn’t consider the merits of the request actually made. Those merits were:

1. Something like the proposed podcast was necessary in order for the Claimant’s claim of innocence to attract sufficient attention to draw out new evidence of lines of enquiry from the public; and
2. Without a telephone interview, the professional journalistic opinion was that the podcast would not be commissioned and made.

That professional journalistic opinion was relevant – contrary to what the Governor said in refusing Mr Alexander’s request.

It was a central element which made telephone contact more suitable than written communication, if what the Claimant has to say is to be disseminated widely enough to have any value in potentially establishing his innocence.

Mr Justice Baker found that the Governor reached an irrational conclusion in relation to distress being caused to victims or public outrage being caused as a result of the broadcast of the interview, given the very unusual circumstances of the case.

No victim, other than the Claimant’s father, has ever been identified and the Claimant’ mother and grandmother are in support of the interview.  Mr Justice Baker noted that the relevant criterion does not relate to “generic victims of crime”, but means the specific victims of the crime in question – in this case there were none.

In relation to “public outrage”, Mr Justice Baker found that no reasonable decision-maker could conclude that the public would be outraged by a man convicted of murdering his father being allowed to speak about his case and his claimed innocence under “appropriately controlled conditions, as part of his claim to have been wrongly convicted, rather than only write about it”.

Mr Justice Baker went on to rule that he was not in a position to consider the request and substitute the Governor’s decision with his own. It will be for the Governor to consider the Claimant’s request afresh, taking into account the direction given by Mr Justice Baker as to the interpretation of the relevant rules in the judgment.

This rare insight into the process for achieving permission to carry out an interview with a prisoner is very interesting.

The outcome shows that in considering requests from prisoners, prison Governors need to look at the specific circumstances of the case and can’t rely on broad concepts like causing “distress to victims” without consideration of the specific facts of the case.

Will investigative journalists and their editors be prompted by the decision in Alexander to try to interview prisoners who proclaim their innocence?  Although claims of miscarriage of justice are not common, it’s easy to envisage that enterprising reporters will use this clarification of the law to try to obtain information from those who continue to assert their innocence after conviction.

Though as the final decision remains with prison governors, whether such requests will succeed remains to be seen.  Proving irrationality is not straightforward.