How a Prisoner Took on the State and Won
Picture: A prisoner reading a book / Credit: Impact Sports Prison Ministry
The Hub's The Howard League blog and audio interview introduced the work of a charity advocating for an evidenced-led use of prisons in the UK. Rob Preece, The Howard League's Campaigns Manager, described the charity's role in the public campaign to overturn the UK government's 2013 ban on prisoners' books in England and Wales.
This time, native New Yorker Samuel Genen, the solicitor who led the 2014 legal challenge, tells the story of how his client's insatiable love of reading overturned the ban on prisoners' books in the High Court.
A January 2015 Times: Lawyer of the Week article says: "Samuel Genen, a consultant with law firms Lound Mulrenan Jefferies and Ahmed Rahman Carr Solicitors, acted pro bono for the prisoner Barbara Gordon-Jones, in the High Court case where Mr Justice Collins ruled that the blanket ban on sending books to prisoners in England and Wales, imposed by the justice secretary Chris Grayling in 2013, is unlawful."
Commenting on the case, Chris Grayling MP for Epsom and Ewell, says: "There never was a prison book ban. The whole thing was a total misrepresentation, as was well documented at the time."
Indeed, in the audio interview below, Samuel Genen concedes the restrictions on prisoners being sent books was most likely an unintended consequence of a change in prison policy. Rather than a conscious attempt to stop prisoners receiving books.
However, he says the dispute ended up in the High Court because of a difference of perception, from inside to outside government, of how to respond when the practical effect of a ban on prisoners receiving books became apparent.
You can read a background to Barbara Gordon-Jones v The Secretary of State for Justice and The Governor of HM Prison Send and listen to The Hub's conversation with Samuel Genen, below.
Incentives & Privileges
The story of a government getting itself into trouble over an ill-thought out policy of banning prisoners from being sent books sounds like the plot of a far-fetched dystopia. Orwell's 1984 or an excess of an authoritarian regime like the Soviet Union.
Not what you would expect from "the mother of parliaments". But, in 2014 the Conservative government of the United Kingdom was in the High Court defending an alleged breach of the Human Rights Act.
The narrative centres around a change to the then system of Incentives and Privileges (IEPs), now Incentives Policy Framework, used by the UK government "to incentivise good behaviour and tackle poor behaviour and (rules) breaches".
On 30 April 2013 Chris Grayling, Secretary of State for Justice, announced a number of IEPs changes to “strengthen and support efforts to reduce reoffending and rehabilitate prisoners as well as giving the public greater confidence in the prison system”.
The changes altered the system of prisoner incentives and earned privileges allowing prisoners access to funds to buy books and other items only after they had moved up from a "basic" level by demonstrating good behaviour. Creating the practical effect of prisoners at the basic level not being able to receive books and other items from outside the prison.
The prisons minister, Jeremy Wright, said: "The notion that we are banning books in prisons is complete nonsense. All prisoners can have up to 12 books in their cells at any one time, and all prisoners have access to the prison library.
Image: A book of knitting patterns - deemed unacceptable for prisoners
to receive by a 2013 UK government policy / Credit: Knitting Books
Under the incentives and earned privileges scheme, if prisoners engage with their rehabilitation and comply with the regime, they can have greater access to funds to buy items, including books."
Frances Crook, then CEO of the Howard League for Penal Reform, replied by saying: "Yet the ban on receiving books is a blanket decision, so no matter how compliant and well behaved you are, no prisoner will be allowed to receive books from outside."
At the time, Samuel Genen was a solicitor who focused on prison law, predominantly on the regulations affecting female prisoners and their children. Sam recalls how he became aware of the policy change when one of the crochet patterns he would send to his clients came back with a note saying it was no longer allowed.
Sam would send the patterns to a group of his clients, inmates at Send Prison in Surrey, who were undergoing a therapeutic community counselling course. A therapeutic community is a participative, group-based approach to long-term mental illness, personality disorders and drug addiction.
Sam would send the prisoners crochet and knitting patterns to help them cope with the emotional difficulties these sessions would cause. As Sam says in the audio interview below, when he looked into the cause and impact of the changes his instinctive response was: "This ain't right!"
The Book that Defeated a Government
Image: An image from a CD version of Portnoy's Complaint by Philip Roth
/ Credit: Amazon.com
Samuel Genen brought a legal challenge to the ban on prisoners being sent books on behalf of Barbara Gordon-Jones, "one of the smartest, funniest people I have ever represented". Ms Gordon-Jones had an insatiable appetite for devouring works of literature and would delight in reciting long verbatim passages of novels to Sam and others.
Sam sent Ms Gordon-Jones a couple of Terry Pratchett books to read, at her request. When he explained the IEPs policy meant he was unable to send her more books she was determined to challenge the ban, saying: "I want to read these books!"
The book she wanted to read next was Philip Roth's Portnoy's Complaint. Roth is known, among other attributes, for the lewdness of his texts. Portnoy's Complaint has been described as "The Dirtiest Book Ever Published?". When they were planning the legal challenge Gordon-Jones asked Sam: "Do you know it's been censored before?".
A 2018 Guardian article "How Portnoy's Complaint made Australia a better place" tells the story of how, in 1970, the Australian government banned the book. The article is subtitled: "Philip Roth’s novel was just one of many banned by a prudish government. It was a decision that led to a landmark court case".
Making Roth's book an unlikely, but fitting, catalyst for a challenge to the UK's book ban.
Listen to Sam
Picture: Lawyer Samuel Genen Esq. / Credit: Samuel Genen
Give a Book
You can listen to The Hub's conversation with Samuel Genen, on the 2014 legal challenge to the ban on prisoners receiving books, by clicking on the link below. Sam explains why he believes, "the vast majority of women currently in custody should not be in prison, from either a rehabilitation or an economic perspective".
En route, he mentions his unsuccessful attempt, with barrister Jennifer Thelen from 39 Essex Chambers, to encourage prisoner literacy via a local library exchange system and a book donation scheme. Sam remains convinced that, "assisting with prisoner literacy is immensely helpful and there is very much a need for it."
A sentiment echoed by a 2022 Ofsted review of reading education in prisons. There are a number of charities engaged in prisoner literacy, such as The Shannon Trust and book donation, such as Give a Book. Sam remembers The Prisoners' Education Trust and NACRO as being "amazing".
Political Jeopardy
Commenting on the book ban case, Sam says a key issue was the unexplained, and seemingly political, decision to initially grant, and then rescind, legal aid. Placing the viability of the challenge in jeopardy and putting the claimant at financial risk of a multiple six figure costs bill. If the case had been lost.
Commenting in his ruling on the case after finding in favour of the claimant, Mr Justice Collins said: “It is strange to treat books as a privilege when they could be essential to a prisoner’s rehabilitation. A book may not only be one which a prisoner may want to read but may be very useful or indeed necessary as part of a rehabilitation process.”
The legal teams involved were: Ms Jenni Richards QC, Ms Victoria Butler-Cole and Ms Annabel Lee of 39 Essex Chambers (instructed by Mr Samuel Genen of Messrs Lound, Mulrenan and Jefferies), who were "beyond amazing" for the Claimant. Mr Brian Kennelly and Mr Jason Pobjoy of Blackstone Chambers (instructed by Treasury Solicitor) who were"straight as an arrow" for the Defendants. Hearing date: 29 October 2014.