17 years ago, the highest court in the UK declared that a policy prohibiting journalists from interviewing prisoners to uncover any potential miscarriage of justice violated the right to free expression.
Ian Simms and Michael O’Brien were each convicted of murder and locked up. They were given life sentences but claimed to be innocent. They wanted a journalist to investigate their side of the story, so that their cases could be re-opened and examined to see if there had been a miscarriage of justice.
The term ‘miscarriage of justice’ applies when a person is convicted of a crime but later, perhaps after the person has served years in prison, their case is re-opened and their conviction is found to be ‘unsafe’.
Prison authorities placed restrictions on Simms and O’Brien being interviewed by the press. The Government argued that the policy restricting prisoners’ access to journalists was necessary to maintain order and discipline in prisons. The case went all the way up to the highest court in the UK, which was then known as the House of Lords, but is now called the Supreme Court.
What did the court say?
The court said that the risk of a miscarriage of justice is always present in criminal cases. It recognised that, in recent years, a “substantial number” of miscarriages of justice had been identified and corrected only as a result of painstaking investigation by journalists.
The court concluded that the policy violated Simms and O’Brien’s rights to free speech. As a result, journalists must be able to interview prisoners to help them investigate and challenge potential miscarriages of justice.
While the court recognised that prison is intended to restrict the rights and freedoms of prisoners, including their liberty, autonomy and freedom of movement, it said that order and discipline in prisons would not be put at risk by journalists talking to prisoners about appealing their convictions.
Why does this matter?
In the words of one judge, Lord Steyn: “Freedom of speech acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country”.
The importance of free speech and access to journalists in order to challenge potential miscarriages of justice has recently been highlighted in popular culture through, for example, the documentary Making a Murderer (see more in our post here).
Michael O’Brien has since been exonerated of murder and released. Ian Simms remains in custody.