R (on the application of B) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Fulford,Master of the Rolls |
| Judgment Date | 16 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1628 |
| Docket Number | Case No: C1/2013/3167 and C1/2014/0434 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2014 |
[2014] EWCA Civ 1628
Lord Dyson, MASTER OF THE ROLLS
Lord Justice McFarlane
and
Lord Justice Fulford
Case No: C1/2013/3167 and C1/2014/0434
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN's BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mrs Justice Carr
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Mr Jude Bunting (instructed by Chivers Solicitors) for the Appellants
Ms Kate Gallafent QC (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1 st December, 2014
Master of the Rolls:
At all material times, both appellants were serving prisoners. Until the decisions that gave rise to these claims, Mr B was detained in the same "spur" in HMP Whitemoor as his long-term partner, Mr Beau Beale. Mr B and Mr Beale intend to become civil partners. Mr Keeley was detained on the same wing in HMP Maidstone as his long-term partner, Mr John Doughty. Mr Keeley and Mr Doughty became civil partners on 22 November 2012.
The Secretary of State has taken a series of decisions in each case which have served to separate Mr B and Mr Keeley from their long-term partners. It will be necessary to consider these decisions in detail. In short, it is submitted on their behalf that the decisions were in breach of their rights under article 8 of the European Convention on Human Rights ("the Convention") which provides:
"1. Everyone has the right to respect for his private and family life…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…. "
Managing same-sex partners who are serving prisoners detained in close proximity with each other in the same prison poses particular challenges for the prison authorities. These cases illustrate some of them all too clearly. The main question that we have to decide is whether the policies which were relevant to the decisions which are challenged in these proceedings were "in accordance with the law" within the meaning of article 8(2) of the Convention i.e. whether the policies were sufficiently clear and precise to avoid the risk of arbitrary decision-making by the prison authorities. The issues that are raised are of general importance both to prisoners and prison authorities alike. Carr J refused the claimants permission to apply for judicial review of the decisions which they seek to challenge. Laws LJ gave them permission to apply for judicial review and retained the proceedings in the Court of Appeal.
The facts in the case of Mr B
Mr B was convicted in June 2003 of buggery and gross indecency with a child under the age of 14. He was sentenced to life imprisonment with a minimum term of 5 years. HMP Whitemoor is a maximum security prison. The Dangerous and Severe Personality Disorder Unit has 3 spurs (Red Spur, Blue Spur and Green Spur). In September 2005, Mr Beale was given an indeterminate sentence for public protection for an offence of wounding with intent. Between March 2011 and 17 January 2013, Mr B and Mr Beale were both on the Red Spur. On 17 January 2013, Mr Beale was moved to Green Spur for his own safety. This was following his complaint that he had been raped by a former prisoner and assaulted by a currently serving prisoner. The allegations had been reported to the police for investigation. It is accepted by Mr B that the decision to move Mr Beale was taken to protect Mr Beale and had nothing to do with his relationship with Mr B.
On 30 January 2013, Mr B's request for inter-spur visits to Mr Beale was refused, although "goodbye" visits were arranged on 3 March and 29 May 2013. On 6 March 2013, Mr B issued these judicial review proceedings challenging the decision to separate him from Mr Beale and to restrict contact between them. On 30 May, Mr Beale was moved from HMP Whitemoor to HMP Wakefield, and the Secretary of State has to date not permitted Mr B and Mr Beale to have an inter-prison visit in person. It is intended that contact will take place by video-link and telephone, but Mr B alleges that the Prison Service has failed to organise or approve video-link and telephone appointments. There is, however, no discrete judicial review challenge to what has occurred since the issue of the proceedings.
The facts in the case of Mr Keeley
Mr Keeley is serving an 8 year sentence imposed in June 2010 for indecent assault on a male under the age of 16. Mr Doughty is serving concurrent life sentences with a minimum term of five and a half years that were imposed in 2003 for six offences of rape. The two men were first located together at HMP Maidstone on Thanet Wing in December 2011. On 26 March 2012, they were discovered by a prison guard in Mr Doughty's cell engaging in sexual intercourse. They were warned that this was unacceptable behaviour. No further action was taken, but they were told not to repeat it.
On 27 April 2012, another prisoner reported seeing Mr Doughty and Mr Keeley engaging in sexual intercourse in Mr Doughty's cell. There was a dispute after the decision to separate them as to whether or not this had occurred although Governor Huckle's evidence was that they had admitted it when he spoke to them at the time. Mr Keeley no longer denies that he and Mr Doughty were engaged in sexual intercourse. All that he now says is that they had done their best to think of others by wedging the door closed so that nobody would "stumble in on something inappropriate". In the event, the Governor of the prison (Governor Huckle) decided to separate the men. His reasons for this decision were: (i) the men had been caught twice engaging in sexual activity during association time; (ii) the second occasion took place a month after the first, in circumstances where they had both been warned not to do it; (iii) they had sought to prevent entry into the cell by wedging material underneath the door; (iv) the prisoners could have been (and were) observed by staff and other prisoners; (v) the attitude of both men on being challenged was dismissive, so that it was likely that they would repeat that behaviour; and (vi) it was inappropriate and unacceptable behaviour.
On 29 April, Mr Doughty was moved to another wing of the prison. On 9 June, Mr Keeley made a formal complaint about the decision to move Mr Doughty. The complaint was rejected by the Head of Reducing Offending on 29 June in these terms:
"Mr Keeley, thank you for your complaint. Wing moves are not facilitated to allow you to be located with your friends or lovers. In this instance you were first warned about your inappropriate conduct with Mr Doughty but continued to behave in a manner which did not comply with the Decency Policy. Therefore the [senior Officer] was correct to decline your request."
On 22 November, the two men entered into a civil partnership. On 25 November, Mr Keeley applied to be moved to Kent Wing to join Mr Doughty. This application was rejected on the grounds that inter-wing transfers other than from Weald Wing (the induction wing) were only made for operational, security or medical reasons and Mr B's request did not satisfy any of these reasons. Three further decisions that were made regarding contact between the two men are challenged. These are: (i) the decision on 4 January 2013 to move them to separate workbenches following receipt of allegations that they were engaging in sexual activity under the workbench during work periods; (ii) the decision on 8 January 2013 to tell them that it was unacceptable to cuddle in the workshop; and (iii) the decision to ban Mr Keeley from attending the Multi-Faith Centre following intelligence that he and Mr Doughty had been touching each other intimately during the Church service and were planning to act inappropriately during the church service on 12 January 2013.
On 13 January 2013, Mr Keeley issued these judicial review proceedings challenging the decision to separate him from Mr Doughty and to restrict contact between them thereafter. On 10 May 2013, it was decided to move Mr Doughty to another prison (HMP Bure), but this decision is not the subject of challenge in these proceedings.
The issues
The three issues that arise on this appeal are (i) whether (a) the decision to separate Mr B from Mr Beale and Mr Keeley from Mr Doughty and (b) the three subsequent decisions to regulate the contact between Mr Keeley and Mr Doughty were "in accordance with the law" within the meaning of article 8(2) of the Convention; (ii) whether the separations were justified (i.e. proportionate) for the purpose of article 8(2); and (iii) whether the decision-making process governing the separations complied with the procedural obligations inherent in article 8. The proceedings both here and below have been conducted on the assumption that article 8 is engaged on the facts of these cases. I shall proceed on the same basis.
The Policy
Mr Southey QC submits that the only sources of relevant policy are insufficient to provide meaningful guidance to a prisoner who seeks to avoid separation from a fellow prisoner with whom he is in a long-term relationship. The relevant policies are described and explained in the witness statement of Jacqueline Townley dated 3 October 2014. She is Acting Joint Head of the Policy and Regulation Team, Equality, Rights and Decency Group, Directorate of National Operational Services.
She says that, once a prisoner has been categorised,...
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