Voiceless Inside – Miscarriage of Justice campaigners take Ministry of Justice to Court over Podcast Ban
The Ministry of Justice has denied an investigative journalist access to interview Mark Alexander while he is in prison, effectively preventing further investigation being conducted in to his case to establish his innocence. Mark has always maintained that he was wrongly convicted of murder in 2010. This is now the second time the Ministry of Justice has interfered in attempts by the press to publicise the family’s campaign for justice. Mark – a law postgraduate – is now challenging this decision in the Royal Courts of Justice, and will be conducting his own case on behalf of the family at a hearing on 23 March 2022. He explains why in this article:
We can often take our right to free speech for granted in a country like England and Wales, where the vast majority of us don’t feel like our voices are threatened, or that we are being excluded from mainstream debate. Yet behind the scenes, battles are still being fought out amongst our most marginalised and forgotten communities. As solicitor Benjamin Bestgen has highlighted, where our government chooses to draw the line when it comes to freedom of speech determines who gets to have a voice in our society and who is left out, silenced and excluded. Most of these skirmishes go on unseen, and yet it is here that our most important and valued principles are truly tested. It is easy to grant freedom of speech to people we agree with, want to hear from, and remember exist.
Our free press plays a crucial role in shining a light on these forgotten sections of society, and identifying injustices where they occur. In order to do this job however, they need free and unimpeded access to those people. This includes some of the darkest and most secretive institutions in our country: prisons. We all have one nearby – those unsightly, brutal fortresses that we drive by or walk past with indifference or curiosity – but who amongst us really has any idea what happens inside?
There is no doubt that there are many people in our prisons who shouldn’t be there. As Lord Steyn remarked in R v Mirza :
“nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation, is ever present”.
I am one of them. My father was murdered in mysterious circumstances over a decade ago. Rather than investigating his criminal lifestyle and dozen or so aliases, the police embarked on a flawed inquiry in which I became the central focus. My violent and abusive upbringing became their chief distraction. Neither my mother or I ever received any support in our grief, and our past victimisation was used as a weapon against us. Like many families blighted by miscarriages of justice, our family has spent years searching high and low for that all-elusive breakthrough – fuelled by the goodwill and generosity of countless individuals who have pitched in along the way. We don’t have the powers of the police, and we certainly don’t have the resources to reach out to the people we need to reach. After 12 years, I am still sat in prison, knowing that I am innocent, but powerless to do anything about it. As Lord Hughes highlighted in R (Nunn) :
“Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process. A convicted defendant clearly has a legitimate interest, if continuing to assert his innocence, to such proper help as he can persuade others to give him… Quite apart from the defendant’s interest, the public interest is in such miscarriages, if they occur, being corrected. There is no doubt that there have been conspicuous examples of apparently secure convictions which have been demonstrated to be erroneous through the efforts of investigative journalists…”
Some time ago, our family was approached by an investigative journalist who was interested in making a podcast about my father’s murder, and undertaking the real boots-on-the-ground investigative work we so desperately need. It could well unlock everything for us. Lord Hobhouse has previously emphasised the potential impact of such press intervention in R (Simms) :
“Someone has to unearth that evidence if it exists… The media have a role to play. They have the funds and have an interest in applying them to the investigation of meritorious cases. Many successful referrals have only come about because of the help of journalists”
Journalists who are interested in conducting these kind of case reviews in England and Wales have to ask the prisoner they want to interview to make a formal application for permission from the Ministry of Justice. Often, such interviews are essential for effective scrutiny of a prisoner’s case. If justice campaigns like ours are appealing to the public for information and asking for the public’s support and trust, then the public needs to know that they have nothing to hide. In depth interviews are often the only real way people can reach an informed judgement about someone, particularly when the subject matter is as complex and emotionally fraught as a miscarriage of justice. As Lord Steyn has remarked in the past:
“My view is that investigative journalism, based on oral interviews with prisoners, fulfils an important corrective role, with wider implications than the undoing of particular miscarriages of justice”.
When the Ministry of Justice denied a film crew access to interview me in prison in August 2017 and again in July 2018, the planned documentary had to be abandoned, and we lost out on the investigative assistance of an exceptional team of journalists. Our efforts to uncover the truth behind my father’s murder largely stalled. When we were approached with the idea of creating a podcast, it seemed like a much more straightforward proposition. All the new team would need to do is record my telephone calls. Even so, the Ministry of Justice turned down this much more modest request in June and December 2021.
Solicitor Gareth Pierce highlighted the problems this kind of obstruction to justice can cause when he gave evidence in the case of R (Simms) :
“There is no difference in the approach of members of the Press to that of solicitors; the commitment of an author to writing a book about a case, of a journalist to writing an insightful article, or a television company to the making of a programme involves a major deployment of resources, budgets and time. Each task demands that those making such a decision believe that their choice is an appropriate one. Such a decision is almost impossible if the individual cannot be seen; where it remains impossible, that individual’s case is the less likely to be taken up by that section of the Press that might have become interested in the abstract”.
My mother wrote to the Ministry of Justice asking them to reconsider their decision:
“Please respect my son’s right to be able to express his account… to support his mental health… We all, as a family, love Mark very much… He is constantly battling for a fair justice system that seems to make it harder to break through and progress”.
Yet the Ministry of Justice brusquely brushed off her request, with little regard for the distress this would cause her. My grandmother has since endeavoured to explain how:
“As a family we need this to happen, to speak out… We all feel that the documentary can bring about fair justice, prove his innocence, and clear his name… We will always support him, because I know in my heart that he is innocent…”.
The Ministry of Justice should be doing all it can to support families and prisoners where there is even the remotest possibility that someone might have been imprisoned for a crime they didn’t commit. Instead, the Ministry of Justice seems to be going out of its way to obstruct such efforts. As Lord Woolf has observed, “the existence of a free press is in itself desirable and so any interference with it has to be justified” (A v B plc ). Suppressing information about a potential miscarriage of justice simply to avoid public embarrassment is not a good reason to hinder press access to prisoners.
When it comes to reporting news, decisions about what is in the ‘public interest’ should be left to our free press to make, particularly when potential shortcomings of the State are being highlighted. When government bodies intervene in ways that stop the press carrying out this important role, we all have a duty to call them out on it. I say this as someone who has not always had a positive experience with the press. A lot of the coverage surrounding my trial was extremely misleading and inaccurate. Even so, I believe in the importance of a responsible free press, and – in particular – the power of quality investigative journalism. To paraphrase Voltaire, “I may disapprove of what you say, but I will defend to the death your right to say it”. Not doing so only gives the State a licence to cover up its own mistakes.
I'm in the High Court this afternoon to defend free speech & our free press, challenging the restrictive application of @MoJGovUK policy whereby wrongly convicted prisoners are denied the support of investigative journalists to uncover fresh evidence https://t.co/cVoUisanJ7— Mark Alexander (@PatientCaptive) March 23, 2022
In its Open Justice Charter, the criminal justice charity APPEAL has called for improved access to prisoners – in recognition of the extraordinary difficulties and obstacles faced by journalists under the current policy. I am not personally aware of a single prisoner who has successfully applied to the Ministry of Justice for permission to be interviewed. Their narrow and restrictive application of their own rules on press access amounts to a blanket ban on all interviews relating to potential miscarriages of justice.
Paradoxically, it was only last December 2021 that the Secretary of State for Justice, Dominic Raab, himself argued for expanding free speech protections:
“We also have the opportunity to reinforce the weight we attach to freedom of speech, a quintessentially British right—the freedom that grants all the others—that we have seen eroded of late by a combination of case law that has introduced continental-style privacy rules and the incremental narrowing of the scope for respectful but rambunctious debate in politically sensitive areas, which is something we in this House should resist both on principle and in the interest of effective decision making that comes only from a full airing of contrary views. Freedom of speech sometimes means the freedom to say things that others may not wish to hear.”
It doesn’t take a Master of Laws degree to realise that the Ministry of Justice have got this policy wrong, but as a law graduate myself, I felt I was well-placed to make a stand on this issue, for free speech and for our free press. I am conscious that I am doing so from a position of vulnerability and weakness, against the might of the very State mechanisms that seek to legitimise and sustain my wrongful imprisonment. Nevertheless, while the Ministry of Justice have sought to silence me – and so many others like me – I will be making my voice heard on 23 March, when I appear before the High Court as a litigant-in-person to present my case. Hopefully it won’t be my last opportunity to do so, and I can perhaps make some meaningful difference for others in my situation, both now and in the future. Wish me luck!
Mark’s Judicial Review was rejected in March 2023, but he has since appealed that decision and the case has now been remitted back to the High Court by Lord Justice Bean. The substantive hearing took place on 23 May 2023, and was covered by the Independent here.
You may remember last year I challenged @MoJGovUK policy limiting prisoners’ free speech & the ability of investigative journalists to access prisons. The Judicial Review was rejected, but I have since appealed & Lord Justice Bean has just agreed to grant a hearing for April! pic.twitter.com/u6tLXhcDQ5— Mark Alexander (@PatientCaptive) February 2, 2023
However heinous the crime, the right-thinking member of the public does not believe that people should be wrongly convicted or imprisoned for crimes they did not commit”
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: