Letter to the Head of News, External Communications

Dear Madame, 

Thank you for your letter of 31 August. I appreciate you giving our request some consideration. I must say, I was extremely surprised by the Ministry’s response given the length of time invested by all parties in this matter and the level of public interest in this case. The decision not to permit this interview to take place has been received with considerable disappointment by both sides of the Alexander family, and indeed everyone who has taken a serious interest in their plight.

I should like to take this opportunity to address the reasons given in your letter for preventing this interview from going ahead, and ask that you reconsider your decision accordingly.

1. In your decision letter you explained that PSI 37/2010 sets out that “visits by journalists can be permitted in certain circumstances where there is sufficiently strong public interest in the issue to be raised”. Paradoxically, you then go on to suggest that the “significant public exposure” and media interest that Mr Alexander’s case has received implies a lack of public interest. With respect, I find this reasoning difficult to follow.
2. At any rate, the combined readership of Mr Alexander’s campaign Twitter feed and Facebook group amounts to little more than 1000 people. The coverage received to date has been necessarily superficial given the limitations of these outlets. We do not feel that Mr Alexander’s campaign is able to match the resources of our production team, nor do we agree that it is adequate. Indeed, the level of detail and exposure involved simply does not compare to the documentary we intend to produce, which has the potential of reaching audiences numbering in their millions rather than in their hundreds. Furthermore, simply adding to the pre-existing written information available about Mr Alexander’s case would be of considerably less value than a filmed interview.
3. The existence of high-profile supporters in this instance, far from negating the need for journalistic assistance or a filmed interview, only confirms that there is sufficient public interest in the case to justify it. Their involvement however, does not equate to a high degree of exposure in and of itself; just as public interest does not equate to public awareness.
4. As such, the possibility of a) new witnesses coming forward; and b) identifying those people who were in contact with, or employed by, the deceased in the final weeks of his life – but whom the police were unable to identify or trace themselves – would be several magnitudes higher were this interview to be aired. One of the notable features of the original police investigation was the fact that “further identities of others who may have been in contact with Sami have not been established”.[1] As Mr Alexander himself stated, “I require [their] assistance not only to pursue new avenues of enquiry but to bring the case to public attention in the hope that someone will come forward with new evidence about what really happened”.[2] We hope to make an appeal to the public for more information as part of this documentary, and that appeal will be significantly strengthened by personal testimony from Mr Alexander himself.
5. Moreover, we bring a level of objectivity and healthy scepticism to the examination of Mr Alexander’s case that simply cannot be achieved by his campaign team. Our conclusions would carry more authority in the eyes of the public because they will have been reached from an unbiased perspective.
6. When Mr Babar Ahmad’s case was considered by Lord Justice Hooper and Mr Justice Singh,[3] he had already received substantially more public coverage and attention than Mr Alexander has done. In Mr Ahmad’s case, the Independent had published an interview with him; an e-petition about his case had attracted 140,000 signatures; and a letter signed by 100 lawyers had been addressed to the Leader of the House of Commons calling for a Parliamentary debate about his case. This did not preclude the High Court from concluding that the Justice Secretary’s decision not to allow the BBC to conduct a face-to-face interview with Mr Ahmad was disproportionate, incompatible with the right to freedom of expression under Article 10, and therefore unlawful in a democratic society.
7. We would echo arguments made in that case that Article 10 includes “the right to choose not just the content of what is to be expressed, but also the form of such expression… this is especially important as an aspect of journalistic and editorial freedom”.[4]
8. Whilst I fully respect your provisional view, I believe that we are better placed to determine whether a filmed interview is necessary in this case. This is a matter of professional, journalistic judgment[5]. Clearly if we felt that the documentary could go ahead without Mr Alexander’s personal testimony, we would have produced it long ago. The very fact that we have waited 2 years for the Ministry of Justice to accede to our request only demonstrates the importance we attach to this interview. As Lord Hoffman once reflected, “The visual image brings home the reality which lies behind the words”.[6] Filming Mr Alexander will enable us and our audience to assess his credibility in interview, and will provide the necessary scope for targeted questioning in what is a highly complex case.[7]
9. As in Mr Ahmad’s case, Mr Alexander’s experience of the criminal justice system over the past 8 years means that “there is an extremely wide range of subject matter on which he is qualified to speak. It would be immensely more fruitful to explore those subjects in an interview, with the ability to home in on issues of interest as they arise, than to deal with them through lists of written questions and delayed responses”.[8] There are many wider issues of public interest which we wish to explore with Mr Alexander in interview, beyond the simple fact that he professes his innocence.[9]
   
10. For example, Mr Alexander’s defence team submitted evidence to the Justice Select Committee (JSC) based on their “dealings with the CCRC in relation” to his case. In their consideration, Mr Alexander’s first application was characteristic of what the JSC described as “those miscarriages of justice described by the Justice Select Committee as “going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of ‘real possibility’”.[10] As you may recall, the JSC concluded that the CCRC was being too “cautious in its approach”[11] and that it was not being “funded properly”,[12] impacting upon the quality of its service. This raises wider issues about the criminal justice system that need to be explored in the context of Mr Alexander’s case. This is another reason why Mr Alexander’s situation “should be regarded as exceptional”.
11. When Mr Alexander made his original application to you in 2015, he had at that stage “exhausted all appeals and [had] no further access to publicly funded legal assistance”. Whilst circumstances have developed in the intervening years such that it is now open to his defence team to pursue an application to the CCRC, this has not actually happened. A number of investigatory strands remain pending, and it would be premature to advance a second application at this moment in time. We believe that a second application to the CCRC would be strengthened by airing the testing of his testimony under questioning because:Members of the viewing public are likely to come forward with new information of relevance to his application that cannot be obtained by any other means. His application and access to justice will in effect be weakened if this interview does not proceed.Mr Alexander’s credibility was a significant issue at trial which now needs to be re-examined in light of subsequent evidential developments. As his legal team express, “we are extremely concerned that Mr Alexander was convicted on the basis of doubt created about his account of events, rather than any evidence of his involvement in a murder”.[13] Our interview would assist the CCRC in making an informed judgment about this aspect of the case in their review. The interview can be used as evidence by the CCRC when assessing the merits of his case, and may be amenable to expert analysis.
12. Whilst “requests for interview to be filmed or broadcast will normally be refused”, we believe –for the reasons outlined above, in our prior application, and in Mr Alexander’s prior submissions to you – that this case does justify a departure from the usual position. I should be very grateful if you reconsidered your decision and granted us permission to proceed with this interview accordingly.It is notable that the Ministry of Justice has made no effort to engage with us in order to discuss the possibilities of finding some middle ground in this case. It was never suggested for example, that the Ministry of Justice might reserve the right to screen the interview footage. We would welcome dialogue with the Ministry of Justice to explore reasonable alternatives in line with the Ministry’s policy objectives.

I think, in the circumstances, that it would be helpful for us to discuss this matter face-to-face. I’d be very happy to arrange a meeting with you at your own convenience. Do let me know when would suit you.

I look forward to discussing our application further with you in due course

[1] CPS Admissions – July 2010

[2] Application to Governor Bill Newton, HMP Gartree – 15 June 2015

[3] R (BBC and Dominic Casciani) v Secretary of State for Justice [2012] EWHC 13 (Admin)

[4] Ibid. at [42]

[5] Ibid. at [44]

[6] R (ProLife Alliance) v BBC [2004] 1 AC 185, at [20]

[7] R (BBC and Dominic Casciani) v Secretary of State for Justice: at [56 – 58]

[8] Ibid. at [58: 12.3]

[9] Ibid. at [89]

[10] House of Commons Justice Committee, ‘Criminal Cases Review Commission’,
HC 850: 25 March 2015 – at [27].

[11] Ibid. at [20]

[12] Ibid. at [35]

[13] Response to the CCRC’s Provisional Statement of Reasons – 28 August 2014 – paragraph 44

The original refusal letter:

moj_a

Update:

In July 2023, the Ministry of Justice finally agreed to allow interviews with Mark to go ahead, following a landmark Judicial Review in the High Court. 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: