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The Ballad of Reading (in) Gaol: Injecting Legal Analysis into the “Book Ban” Debate

By Maleha Khan Creative Copywriter, Justis Publishing Limited.

“Books were the great saviour inside, and I sincerely believe books and education are the great rehabilitators.” This, from a prisoner who over the course of three decades was contained in over 30 different prisons.  

Such statements can trigger our emotions. But as the effects of the much-hyped “book ban” unfold, it is important that we limit the stock we place in our instinctive reactions, and instead consider the objective legal issues at play.

The popularly named “book ban” refers to a restriction on the parcels prisoners can receive; an exclusion extending to underwear, clothing, and other gifts; letters are still permitted. Though changes to the “Incentives and Earned Privileges Scheme” came into effect in November 2013, the issue has recently resurfaced in the public domain following an article from Frances Cook, Chief Executive of the Howard League for Penal Reform. The “book ban” has been widely debated and scorned by academics and authors alike. Below we recount the reaction to the “ban” and discuss whether such changes can ever be properly assessed and reviewed in a jurisdiction which has yet to firmly establish the status and extent of prisoners’ rights.

Changes to the “Incentives and Earned Privileges Scheme” were introduced in April 2013, under Prison Service Instruction PSI 30/2013. There are only two exceptions to the rule; a one-off parcel which can be sent following conviction and, in exceptional circumstances, parcels may be sent at the discretion of the prison governor.

Cook referred to the changes as part of an “irrational punishment regime” stating that ‘”punishing reading is as nasty as it is bizarre”. There has been an outpouring of criticism from authors and academics including Mary Beard, Carol Ann Duffy and Philip Pullman. The reaction has been hugely emotive, with Pullman stating that the prohibition was “one of the most disgusting, mean, vindictive acts of a barbaric government”; Duffy said it hurt the "soul of the country".  

The particulars and realities of the PSI have been widely debated. Criticisms of the changes have been rebutted with clarifications that there is in fact no “book ban”; prisoners remain able to purchase items from the NOMS National Product List or through suppliers approved by the prison governor and access to prison libraries remains. Those advocating the removal of the “ban” have countered that prison libraries are often badly stocked and inadequate, with understaffing leading to inconsistent and compromised library visits. The Howard League notes that an employed prisoner is paid approximately £8-10 a week. With necessities to purchase, books become an unaffordable luxury.

As the debate has continued the argument has broadened to assert that in reference to the aims of educating and rehabilitating prisons, the “book ban” simply cannot be a good thing. Mark Haddon,  author of The Curious Incident of the Dog in the Night-Time stated that it is a “counterproductive” policy, “gratuitous and mean-spirited” which “fails to acknowledge the vital part books play in educating and rehabilitating prisoners.”

Furthermore, Geoffrey Robertson QC has argued that the government could be acting illegally in inflicting “cruel and unusual punishment” on literate prisoners. Robertson, joint head of Doughty Street Chambers has stated that Chris Grayling “has no power to impose additional punishment on prisoners over and above that which is imposed by the courts. The action has nothing to do with prison security or any other legitimate purpose."

From a literary and liberal background such outrage is understandable. However to move beyond heated and emotional arguments, and to review whether the PSI conflicts with rehabilitative aims and withstands legality tests, we must examine both the purpose of imprisonment and the status of prisoners’ rights.

The imposition of this policy deprives prisoners of the right to receive parcels outside of the exceptions provided. To assess the legitimacy of this policy we must first ask what rights prisoners have to receive parcels, and what limitations those rights are subject to. It has never been stated that there is a fundamental right for prisoners to receive parcels; the difficulty occurs as there are differing conceptions as to the status of prisoners’ rights.

Liora Lazarus brought our attention to this issue in her 2006 Modern Law Review article “Conceptions of Liberty Deprivation”. Lazarus stated that we “must determine what is contained in the custodial sanction as a sentence as distinct from what is entailed in the administration of the custodial sentence.” She noted that it is “imperative to distinguish between the liberty and rights lost as a consequence of the custodial sanction, and that lost as a consequence of prison administration.” She refers to this as the necessity to recognise the “key distinction”.

The “primary importance of liberty” demands that any rights limitations are justified. The context in which a prisoner’s rights are limited must be explicit: “A failure to make explicit in which context the limitation of a right is or is not justified would not only undermine the rigour of the proportionality exercise, it would result in unsatisfactory legal opacity” writes Lazarus.

The arguments supporting the implementation of PSI 30/2013 have failed in this regard by entangling rights lost due to administration with rights lost due to sentence. The prohibition on parcels has been justified by the administrative concern of smuggling contraband items: “it is inconceivable that we could impose the additional operational burden on our staff of carrying out detailed assessments of an unlimited number of parcels coming into prisons” and in reference to the curtailment of rights as part of the custodial sentence; privileges ought only be rewarded to those prisoners who engage in "proper rehabilitative activity".

In implementing the PSI Chris Grayling muddles two differing aims and fails to recognise the key distinction. Without recognising in which context a right is limited it is impossible to review whether the curtailment of the right is legitimate and proportionate. Grayling’s statements are not altogether surprising since, as Lazarus states, in England and Wales “there is no clearly articulated distinction between the limitation of rights as a result of the imposition for the criminal sentence and limitation of rights during the day-to-day administration of prisons.”

As Lazarus emphasises without guidance on the distinction between personal and residual liberty “the English conception of the prisoner’s legal status is not sufficiently robust to fulfil the principles of legality and proportionality,” meaning changes in policy cannot be properly assessed or challenged.

Lazarus outlines that integral to maintaining the key distinction is the need to have “guidance as to the purpose or rationale of both the penal sanction and the purpose of prison administration.” Lazarus compares the jurisdictions of Germany and England. Germany has the advantage, not merely of recognising the divisible nature of prisoners’ rights, but additionally of having the “resocialisation purpose of imprisonment constitutionally defined”; the German Prison Act was passed in 1976 to give expression to the above principles.  

Meanwhile the approach to the prison system in England and Wales is politically responsive, subject both to public interest and to the fluctuations of party politics. Courts in England and Wales courts have developed two lines of cases “one which has tacitly accepted and built upon the key distinction, the other operating on an implicit conception of the indivisible of the offenders’ liberty.”

Whilst Daly, a case concerned with the surveillance of prisoners legal correspondence saw Lord Bingham state that a custodial “order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order” Nilson countered that “it is not so easy to define the test of what are the natural incidents of penal imprisonment, and these are certainly susceptible to change as a result of changes in attitude to punishment.”  Wavering from commitments to rehabilitative justice to stronger ‘prison works’ mantras, “there is no fixed political or legal consensus as to the nature and purpose of the sanction of imprisonment or, for that matter, of prison administration within the English system.”

As Haven Distribution, a charity which provides books to prisoners has stated, “From our experience there is a constant battle between punishment and rehabilitation and the two are at loggerheads in prisons. The punishment is the loss of a person’s liberty otherwise called imprisonment. Rehabilitation or resettlement should be trying to turn a person’s life around by convincing them of the error of their ways. The banning of books seems to just be an additional punishment to us.”

The above highlights the difficulty in moving forward from purely heated and emotive arguments against the changes. Establishing defined purposes for both prison administration and for imprisonment would define how changes and reforms could be challenged and reviewed in future. As Lazarus states “If we were to decide that the purpose of prison administration was primarily punitive, there would be little room to argue against severe limitations of prisoners’ residual liberty and human rights within prisons.” Alternatively if the purpose of prison administration was tailored towards rehabilitation then “the justification for a punitive style of prisoner administration, and its consequent restrictions on prisoner’s rights, would be limited.”

Whilst there is ambiguity regarding the purposes of imprisonment and the purpose of prison administration there is no purpose against which the proportionality of a measure can be assessed. Furthermore without a definite view of what prison is for there is no guidance for which reforms and changes should be made.

For now the campaign to overturn the changes continues to grow, with international artists joining the movement of British academics and writers petitioning the government to review the “book ban”. With shifting political beliefs on the aims of imprisonment and a tendency to echo the public interest in policy changes, it may be that the campaign succeeds in reversing the changes. However a reversal of the changes in this instance would not detract from the necessity for the entrenchment of the divisibility of rights and a definitive decision to the purposes of the prison system. Lazarus suggests that, “the primary importance of liberty demands that legislature and courts deliver stable and clear frameworks which determine the exercise and extent of its deprivation. A new Prison Act clearly delineating the prisoner’s legal status in England would be a crucial advance in this process.” Whether a new Prison Act is introduced, or whether courts begin to take a more consistent approach regarding divisible rights, steps need to be taken, without progress  prisoners’ rights will remain undefined and subject to arbitrary and fluctuating limitations.

 

Maleha Khan Creative Copywriter, Justis Publishing Limited.

Published in June 2014

 

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