R (Bright and Another) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 2014 |
| Date | 16 December 2014 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Dyson, Master of the Rolls, Lord Justice McFarlane and Lord Justice Fulford
Decisions taken by prison authorities which separated prisoners from their homosexual partners did not breach those prisoners' rights to respect for private and family life as guaranteed by article 8 of the European Convention on Human Rights.
The Court of Appeal so held, dismissing the claims for judicial review (for which permission to proceed had been granted by Lord Justice Laws in the Court of Appeal), following the refusal by Mr Justice CarrUNK ([2013] EWHC 3514 (Admin)) to grant permission to: (1) the claimant, David Bright, to proceed with his claim for judicial review of the decision of the Governor of HM Prison Whitemoor to separate the claimant from his longterm partner, who had been serving a sentence of imprisonment at the same prison before he was moved to HM Prison Wakefield; and to (2) the claimant, Andrew Ke eley, to proceed with his claim for judicial review of the decision of the Governor of HM Prison Maidstone to separate the claimant from his longterm partner, who had been in the same wing of the prison, by moving him to another wing.
Mr Hugh Southey, QC and Mr Jude Bunting for the claimants; Ms Kate Gallafent, QC, for the secretary of state.
THE MASTER OF THE ROLLS said that the claimants submitted that the only sources of relevant policy were insufficient to provide meaningful guidance to a prisoner seeking to avoid separation from a fellow prisoner with whom he was in a long-term relationship. No guidance had been publ ished on the location and separation of prisoners and general statements that prisoners should behave in a decent manner did not provide guidance on what behaviour would be classed as decent or indecent.
It was the claimants' case that the absence of sufficiently clear relevant policies rendered the decisions taken unlawful in that they were not "in accordance with the law" for the purposes of article 8(2) of the Convention.
His Lordship said that whether a particular sexual relationship between serving prisoners should be facilitated was a complex issue. In the prison context there was a fundamental difficulty in distinguishing between consensual and coercive relationships.
The jurisprudence of the European Court of Human Rights adopted a realistic and pragmatic approach to the requirement of "in accordance...
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