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After almost 8 years of patiently requesting permission from the Ministry of Justice to speak with an investigative journalist about his wrongful conviction, former King’s College London law student Mark Alexander has today won his legal challenge against the government’s restrictive policy on prisoners’ access to the media. Multiple journalists have been frustrated in their attempts to gain access to Mark for interview, having been repeatedly turned down by the Ministry of Justice Press Office and its draconian vetting process – a problem familiar to any documentary film and podcast maker attempting to investigate potential miscarriages of justice here in England and Wales. As journalist Robin Eveleigh explained to the Court:

The role of the media in highlighting and exposing miscarriages of justice cannot be overstated. The BBC’s pioneering investigative documentary Rough Justice led to 18 convictions being overturned”.

Many of us will have watched or listened to such documentaries produced in America and elsewhere, where media access is made much more straight forward. The approach in this country however has had a long-term chilling effect on the production of such documentaries, which have become far less common, leading to a lack of effective scrutiny of our criminal justice system while marginalising prisoner voices.

In a landmark judgement, the High Court has today issued important guidance as to how the policy should be correctly interpreted, vindicating the governor of Mark’s prison – Niall Bryant – who was initially supportive of the documentary going ahead until forced to roll back on his decision when ‘misdirected’ by government officials:

“I am willing to support your application locally, based on the knowledge I have of your case, the discussions we have held, and the information you have provided. However, as I understand, I am unable to progress this for you until I have approval from the Press Team”.

Turned down on four occasions by the Ministry of Justice, and turned away by the High Court in March last year, Mark could very easily have succumbed to the inertia of the system. Undeterred however, he successfully appealed the refusal to hear his Judical Review at the Court of Appeal earlier this year as a litigant in person – having earned a Master of Laws degree whilst in prison. He has since been generously assisted by the barrister Greg Callus KC from 5RB Chambers.

Judgement-Alexander-v-Secretary-of-State-for-Justice-2023-EWHC-1407-Admin

Victims’ Rights

Mr Justice Andrew Baker, in today’s High Court judgement (R (Mark Alexander) v Secretary of State for Justice [2023] EWHC 1407 (Admin) available here), found that the Ministry of Justice had enforced its policy in an irrational way by assessing the possible impact upon victims in the abstract, thereby ignoring the wishes of the deceased’s family who actually support the documentary being made and who believe that Mark has been framed. In a derisive response, Ministry of Justice officials insisted that the deceased’s family “do not have a monopoly on distress to victims”, thereby claiming its own ‘monopoly’ by which to silence both Mark and his family.

In future, a specific individual who might be impacted must be identified, rather than simply any potential victim of crime more generally who has no personal connection to the case. In addition, this means that it is no longer the case that all five criteria set out in paragraph 3.2 of the policy have to be met in order to approve such an application. Indeed, as the Judge has now highlighted, the wording of the criteria is unclear and should never have been interpreted in this way.

The news has been welcomed by relatives of the deceased, including Mark’s grandmother, who explains:

As a family we need this documentary to happen. We all feel it can bring about fair justice, to prove Mark’s innocence and clear his name. I will always support Mark, because I know in my heart that he is innocent”.

Critically, the rights of victims must be carefully balanced against the need to ensure that no injustice has occurred. In potential cases of wrongful conviction, the rights of a prisoner to seek the support they need to scrutinise and investigate that decision must be given more weight and should not be automatically overridden by consideration of the potential impact on victims. No victim would wish the wrong person to be in prison for the harm they have suffered. Whilst this may risk reopening old wounds, and victims may feel convinced through the trial process and surrounding media coverage that the right person was convicted, the justice system is not infallible and should not be immune from scrutiny. Brushing mistakes under the carpet for the sake of finality or institutional credibility does a disservice to victims when they are being sold lie.

Public Taste

The Ministry of Justice also tried to bar Mark’s application for an interview on that basis that it may cause what it described as ‘public outrage’. This was, in Mark’s view, “a cynical attempt by the Ministry of Justice to weaponise its policy and discriminate against minority interests – namely to suppress the free speech of prisoners, in particular those maintaining innocence, in the name of ‘public sensibilities’”.

As journalist Robin Eveleigh told the Justice Gap earlier this year:

The Ministry of Justice seems to be setting itself up as some kind of arbiter of ‘good taste’, but it really shouldn’t fall to a government department to decide what might or might not cause ‘outrage to public sensibility’. I think the public is far more resilient to this kind of material than the Justice Secretary imagines – you’ve only got to look at the global interest in the case of convicted murdered Adnan Syed, covered in a podcast that’s been streamed something like 300 million times. Syed has since had his conviction overturned, thanks in no small part to the podcast”.

The Judge rightly ridiculed the idea that an interview with someone who may have suffered a miscarriage of justice might cause ‘outrage’ to public sensibilities. The notion that someone who has been wrongly convicted is not only being silenced, but being kept in prison for longer because of their inability to access support, is quite obviously a more likely source of ‘outrage’. When applied in this way, the policy effectively suppresses attempts to remedy wrongful convictions, and places the Ministry of Justice in the bizarre position of actively obstructing prisoners’ access to justice. This approach has now been declared irrational by the High Court.

Urgency of Interview

The policy scrutinised by the High Court states that applications by the media to speak to a prisoner over the phone, where intended for broadcast, will only be allowed if:

a telephone conversation is the most suitable method of communication; for example, where the prisoner needs to provide comment as a matter of urgency, due to the immediacy of the subject or the media’s need to report it within a timescale that could not be met by written correspondence.”

The Ministry of Justice has wrongly interpreted this to mean that calls will only be suitable if they are ‘urgent’, allowing them to dismiss almost any application with ease because they can always insist that no call is so urgent that letter writing won’t suffice as an alternative. Mr Justice Andrew Baker found that this “wrongly narrowed the Governor’s focus” when considering Mark’s application. In future, urgency should not be treated as a requirement in such applications.

Assessing the need for phone calls

Finally, and in a breakthrough for press freedom, the Ministry of Justice must now take into account the professional opinion of the journalist concerned as to why the interview is necessary. This should include evidence as to the likelihood of the documentary being able to proceed without such an interview, which the Ministry of Justice refused to consider in Mark’s case – wrongly deeming it to be ‘beyond the scope of the policy’. The reality of today’s competitive marketplace is that journalists have to consider the expectations of a commissioning editor. Many documentaries simply never get made for lack of such funding. As one Producer informed the Court,

In my professional judgement it would be very difficult to provide a thorough and rounded podcast on the subject without being able to use original audio recordings of the applicant; and certainly, if restricted to just the contents of written material it would not be sufficient to produce a podcast of this kind.”

Journalist Robin Eveleigh made it clear that Mark’s “voice would be an essential component of any radio production”, but was told that he should rely on letters from Mark instead.

Mr Alexander’s story is never going to reach the audience it needs and deserves via print media, nor would a print media commission or commissions go anywhere near supporting the volume of work required to investigate his case thoroughly. It is telling that in response to the quashing of Adnan Syed’s conviction – following the global attention his case received through the American podcast ‘Serial’ – veteran BBC journalist Justin Webb told Radio 4’s Today programme that podcasts were now “the place to go” for innocent people wrongly convicted”.

Next Steps

The High Court has quashed the Ministry of Justice’s decision and given clear guidance as to how the policy should be correctly interpreted. The Ministry of Justice will now be given the opportunity to reach a new ‘properly directed’ decision that could give the green light to the production team to begin working on a podcast series about Mark’s case. Reflecting on today’s judgement, Mark says:

Getting to this point has been a long and arduous journey – and in many ways an unexpected and unnecessary distraction from the real and urgent work of preparing my appeal – but it brings us yet one step closer to our goal of finding the truth, and that gives me real hope for the future. What it has revealed however, is a system simply incapable of responding effectively to miscarriages of justice. This has to change. Anyone who has the misfortune of being wrongly convicted faces obstacle after needless obstacle in their quest for justice. The toll that this takes on you as an individual – when nobody seems to be taking your situation seriously, and all roads out of the nightmare seem to be blocked – is immeasurable. Nobody should have to go through what I and so manyothers have gone through, and indeed, continue to go through on a daily basis.

Over a decade of personal investigation from my prison cell has only gotten me so far. I know that my family and I simply won’t be able to get to the bottom of all this without reaching out for help, and without support from the public. If this documentary can raise awareness about my father’s murder and encourage members of the public to come forward with new information, then it will all have been worthwhile. There are still so many unanswered questions about my father’s lifestyle and the people he was in business with, so my hope is that some of that will start coming to the surface.

Today’s ruling is an important milestone in the fight for an open, transparent and accountable justice system in which prisoners’ voices are heard; wrongful convictions can be properly scrutinised; and our free press is able to work without resistance or obfuscation from government. More needs to be done to address other systemic failings at the heart of our penal and justice system, but today at least marks a step in the right direction and will hopefully enable more recognition to be given to miscarriages of justice here in the UK.”

Mark and his family would like to thank the staff at the criminal justice charity APPEAL for their advice, with special gratitude to barrister Greg Callus KC at 5RB Chambers who so generously agreed to take up this Judicial Review on a pro bono direct access basis and dedicated so much of his time to the case in its later stages. Mr Callus has donated his fees to the Access to Justice Foundation.

Documentation

In July 2023, the Ministry of Justice finally agreed to allow interviews with Mark to go ahead. Practitioners and campaigners looking to make similar applications may find the following pack useful, which contains a copy of all the Court documentation and correspondence that led to this breakthrough::

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