A prisoner claiming to be wrongly convicted of the murder of his father has successfully challenged a ban preventing him talking to the media about the case. Mark Alexander, who has always protested his innocence, had been refused permission by the governor of HMP Coldingley, Surrey to be interviewed by telephone by an investigative journalist making a podcast about his case.
Mr Justice Baker, giving judgment in the High Court, ruled that the refusal of a telephone interview was ‘a misdirected and irrational decision’ and directed the governor to consider a fresh application. You can read more on the legal challenge on the Justice Gap here. Alexander argued that the ‘sustained public exposure’ that a podcast could achieve was needed for the public to come forward with new information that would ‘help us reach the right people and bring my father’s killers to justice’.
Alexander, who studying law at King’s College at the time of his conviction, also argued that his contribution to the podcast would be in the public interest as it would promote debate about the criteria for allowing appeals in criminal cases in the light of the 2021 report of the Westminster Commission on Miscarriages of Justice which led to the Law Commission’s ongoing review of criminal appeals.
‘Getting to this point has been a long and arduous journey,’ commented Mark Alexander (through his campaign team). He called the legal action ‘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,’ he commented. ‘What it has revealed 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 judicial review focussed on PSI (Prison Service Instruction) 37/2010 which limits stipulates that ‘if a prisoner wishes to contact the media by telephone and the call is intended or likely to be published or broadcast by radio or television or posted on the Internet the prisoner must first apply in writing to the Governor for permission’. This will only be allowed in ‘exceptional circumstances’ where the prisoner ‘intends to make serious representations about matters of legitimate public interest’ including ‘an alleged miscarriage of justice in the prisoners’ own case’.
Alexander was brought up by his father who died in 2009. His body was discovered buried in his back garden covered in mortar and underneath a thick concrete slab. There was no forensic evidence linking the then undergraduate student to the death. His mother re-established contact when he was on remand. According to the judgment: ’She is now, along with her own mother, a supporter of his, in his claim that he was wrongly convicted.’
An unsuccessful application to the Criminal Cases Review Commission was made in 2015 after failed applications to the Court of Appeal. The claimant requested permission for an interview from the governor arguing that he wanted to investigate a ‘complex network of aliases’ of his father’s used relating to mortgage, insurance and credit frauds and not included in the police investigation.
The journalist Robin Eveleigh is making the podcast. He told the Justice Gap that he had ‘taken the view long ago that the best way of telling Mark’s story would be through a podcast’ – it was the only way we were going to achieve the audience the story deserves. We could only do it justice through long-form story telling, we could only deliver the investigation it needs, and invite feedback from the audience – potentially revealing new evidence – through a series of episodes. And only by speaking to Mark directly could we critique his claims in a way that would be authentic, garnering responses in real time.’
‘We explained all this at the outset, but my professional opinion – based on over 20 years’ experience in journalism – was dismissed out of hand. We were also told that hearing Mark speak ran the risk of causing public outrage,’ Eveleigh continued. ‘Thankfully, Justice Andrew Baker disagreed on both counts. I think the fact that the high court has recognized the value of prisoners being able to speak directly to an audience is a significant moment for open justice beyond the confines of the courtroom. It also shows that, in the right circumstances, giving prisoners a voice plays a crucial role in the pursuit of justice – far from being outraged, these are stories that people want to hear.’
Mark Alexander called the ruling ‘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’.
However he added: ‘We’re in quite a strange situation.’ He said his legal team, led by barrister Greg Callus KC who acted pro bono, were left ‘rehashing arguments that were made 20 years ago’ in a landmark ruling case in which a prisoner (John Hirst) wanted to take part in a telephone conversation for broadcast.
‘We got a very similar judgement back then – that was in 2002 – but there was a caveat at the end of the judgement saying that the prison authorities can properly say that it should only be in exceptional cases that access to the media by telephone should be permitted. … the Ministry of Justice has never given effect to the Hirst judgement – until now.’