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This article was first published on LexisLibrary on 31 March 2014. Click here for a free 24h trial of LexisLibrary.

Books in prisons--reading between the bars

31/03/2014 Prison law analysis: The government's move to restrict prisoners' privileges has recently come under fire in the media. Prison law specialist Nancy Collins, an associate of Irwin Mitchell LLP, explains the concerns.

What is the background to the media attention?

The Ministry of Justice's changes to the Incentives and Earned Privileges (IEP) scheme came into effect in November 2013. Under Prison Service Instruction 30/2013 paras 10.4 and 10.5, prisoners will no longer be allowed to receive parcels from family and friends unless the governor allows a one-off parcel after conviction or decides there are exceptional circumstances. A recent article for Politics.co.uk by Frances Crook, the chief executive of the Howard League for Penal Reform, entitled 'Why has Grayling banned prisoners being sent books?' focused on one of the consequences of the parcels ban. The article prompted criticism of the measures from various sources, including the chief inspector of prisons Nick Hardwick, and a letter of complaint signed by 80 well-known authors.

How did the old IEP scheme work?

The IEP scheme was introduced in 1995 in response to recommendations by Lord Justice Woolfe in his 1991 report into a riot at Strangeways prison. He had recommended that there should be a system of incentives and disincentives to promote good behaviour. The aim of the IEP scheme has always been to encourage prisoners' good behaviour through a system of earned privileges. The statutory power for the IEP scheme is currently derived from the Prison Rules 1999, SI 1999/728, r 8 and the Young Offender Institution Rules 2000, SI 2000/3371, r 6, which require every prison and young offender institution to provide a system of privileges in addition to the minimum entitlements under the rules awarded to prisoners who reach and maintain specified standards of behaviour. It is a myth, however, that under the previous regime, prisoners gained access to privileges simply by avoiding trouble, as claimed by justice secretary Chris Grayling. The aims of the previous schemes, set out in Prison Service Instruction 11/2011 and Prison Service Order 4000, were listed as follows: o o o o to encourage responsible behaviour by prisoners to encourage effort and achievement in work and other constructive activity by prisoners to encourage sentenced prisoners to engage in sentence planning and benefit from activities designed to reduce re-offending, and to create a more disciplined, better-controlled and safer environment for prisoners and staff

The previous and current IEP schemes have three levels--basic, standard and enhanced. The previous policy allowed prisons some flexibility as to the privileges available under the IEP scheme. However, there were six key earnable privileges, which when available within a prison had to form part of the IEP scheme.

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These were: o o o o o o extra and improved visits eligibility to earn higher rates of pay access to in-cell television opportunity to wear own clothes access to private cash, and time out of cell for association

The previous policy did not contain specific provisions limiting items such as books which could be sent to prisoners. Instead, books, newspapers and magazines form part of a list of items that prisoners were entitled to have in their cells, with the exclusion of any the governor considered to be offensive or inappropriate.

Why was the IEP scheme changed?

On 30 April 2013, ministers announced that following a review of the IEP scheme, prisoners would be required to work to earn privileges, behave well and help others. Ministers advised that the absence of bad behaviour would no longer be sufficient to enable prisoners to access privileges. The new IEP scheme came into effect from 1 November 2013 under PSI 30/2013. It is understood that part of the rationale for the new IEP scheme is the need for greater consistency in the IEP scheme throughout the prison estate. More importantly, the scheme represents the government's initiative to implement tougher conditions for prisoners.

What were the main changes?

The new IEP scheme incorporates a new 'entry level' which sits between the standard and basic levels. The entry level applies to new prisoners entering the system, unconvicted prisoners who are convicted after 1 November 2013 and prisoners recalled to custody after 1 November 2013. This entry level is perhaps even more controversial than the ban on sending in books. Convicted male entry level prisoners are required to wear prison clothing, entry level prisoners cannot access higher paid work and they have access to less money than standard or enhanced prisoners. This means that people entering the prison system, who are recognised to be vulnerable and who statistically present with a higher risk of suicide or self-harm, will be stigmatised and lead a more impoverished regime. The restriction on items, including books, which can be sent in to prisoners aims to ensure that the IEP scheme is not undermined. It is now only in exceptional circumstances that items can be sent in--the circumstances cited include disability aid and artefacts for religious observance. In addition, there is a restriction on the items prisoners can access, depending on their IEP level. Only enhanced and standard level prisoners can possess painting brushes, sewing kits and vitamin supplements. Only such prisoners are allowed to access the gym, above the minimum statutory allowance of one hour a week.

What are the criticisms of the new scheme and do you think there could be any legal challenge?
The government's focus on the punitive regime of prisons is worrying and sits uncomfortably with its purported aim to reduce crime. There is surely a risk that if prisoners are deprived of the opportunities to develop skills in prison, through for example access to books sent to them, the opportunities for rehabilitation will be lost. There are limited work and education opportunities in prisons and access to offending behaviour programmes has always been limited with long waiting lists for courses which prisoners are required to do to address risk factors and ensure their continued progress. The new restricted regimes under the IEP scheme are likely to increase prisoners' frustration and boredom. There can be no good reason for preventing prisoners from accessing books and other items which enhance their opportunities to develop new skills while in prison, at no cost to the state. The importance of prisoners being able to access books can be in no doubt. Thus the Council of Europe's European Prison Rules, r 28.5 provides that every prison shall have a library for the use of all prisoners, adequately stocked with a wide range of both recreational and educational resources, books and other media.

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However, it is difficult to see the grounds on which the specific ban on sending books into prisons could be subject to any legal challenge. The most likely circumstances would be where there is a refusal to allow a prisoner to obtain or receive a book required to enable them to practise their religion. Interviewed by Robert Matthews. The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.