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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bright & Anor v The Secretary of State for Justicee  EWCA Civ 1628 (16 December 2014)
Cite as:  EWCA Civ 1628,  WLR(D) 549,  WLR 723,  1 WLR 723
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ON APPEAL FROM THE HIGH COURT, QUEEN's BENCH DIVISION
The Hon. Mrs Justice Carr
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE FULFORD
| Mr David Bright
Mr Andrew Keeley
|- and -
|The Secretary of State for Justice
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Ms Kate Gallafent QC (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1st December, 2014
Crown Copyright ©
Master of the Rolls:
"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…. "
The facts in the case of Mr Bright
The facts in the case of Mr Keeley
"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."
"It may also be relevant where a prisoner has close relatives in prison: location in the same prison might be facilitated to ensure the maintenance of their relationship and to contribute to their rehabilitation and resettlement, or in some circumstances—such as where one prisoner presents a threat to another—we may find it necessary to ensure that close relatives are held in separate prisons."
"24. As set out above, a prisoner's domestic or family circumstances are taken into account when reaching decisions such as to which prison a prisoner should be allocated, and how family and personal ties should be maintained between prisoners both where their close relative is within the prison estate and otherwise. The position is the same for prisoners in a homosexual relationship and those in any other form of relationship.
25. So far as prisoners held in the same establishment are concerned, whilst PSI 16/2011 does not describe the arrangements that should be made when close relatives are held in the same establishment, NOMS considers it appropriate to allow visits within the same establishment on the same basis as visits between establishments. For example, at Peterborough – the only prison holding prisoners of both genders – formal supervised visits between married prisoners are facilitated in a similar way to that described for inter-prison visits in the national policy, to the extent appropriate in any individual case. Governors could exercise their discretion locally to permit more frequent visits if it was considered appropriate in a particular case.
26. As for where individual prisoners should be located within an establishment, as explained above that is a matter for the Governor of the establishment taking into account the individual circumstances of the case. However, in order to maintain good order and discipline, we have taken the view that two prisoners who we know to be in an intimate relationship should not share the same cell. There is no formal policy covering this issue due largely to the complex nature of the issue, therefore decisions are taken at a local level on a discretionary basis.
27. Apart from considerations of parity of treatment with (and the likely unfavourable reaction of) other prisoners who are not able to maintain their sexual relationships this is because it is not always possible to differentiate between consensual and coercive relationships in a custodial situation. It is our experience that order and control issues can also arise when such a relationship ends.
28. NOMS recognises that prison staff on occasion might not be aware that two prisoners sharing a cell are in a relationship. In those circumstances PSI 47/2011 – Prison Discipline Procedures provides that if they engage in sexual activity in their cell during the night when they have a reasonable expectation of privacy, a disciplinary charge may not be appropriate (paragraph 1.76). (This would, of course, only be if the sexual activity was consensual – if it was not, a charge of assault against one of the prisoners, and/or referral to the police may be appropriate.) In line with our position set out above we would expect, though, the prisoners no longer to share the same cell once the relationship had become known to staff.
29. The position is different where the sexual activity takes place otherwise than in a cell during the night. If prisoners are observed by someone who finds (or could potentially find) their behaviour offensive, a charge under PR 51 (20) / YOI R 55 (22) (insulting behaviour) may be appropriate, particularly if the act occurred in a public or semi-public place within the establishment, or if the prisoners were 'caught in the act' during a cell search.
30. NOMS has not sought to define exhaustively every activity that might be characterised as "sexual activity" potentially giving rise to a charge of insulting behaviour. Insulting behaviour may take a myriad of different forms, including that arising from sexual activity, and it does not consider it either necessary or appropriate to seek to define every such type of behaviour. As with every charge of insulting behaviour, it will be for the suitably trained and experienced adjudicator to determine whether the charge is proved by giving the term "insulting" its ordinary meaning, and the adjudicator should consider how a reasonable person at the scene would view the words of behaviour, bearing in mind that what may be rude or annoying is not necessary (sic) insulting (see paragraph 2.19 of PSI 47/2011). Governors are required to regularly review the conduct of adjudications within their establishments to ensure that they are fair, lawful and just (see paragraph 3.30).
31. A similar approach to sexual activity is not expressly reflected under the Incentives and Earned Privileges (IEP) scheme, which enables prisoners to earn additional privileges on top of their basic entitlements under the Prison rules. As part of the revised IEP national policy framework introduced in November 2013 prisoners are required to sign an IEP Compact accepting that they have read (if able to), understood and had the opportunity to question the requirements of the scheme and prison staff must sign the compact to evidence that the prisoner has been made aware of the scheme. If a prisoner refuses to sign the compact the presumption will be to put them on Basic regime unless all other aspects of the individual's behaviour and performance are acceptable.
32. The Compact makes clear the need for prisoners on the revised framework to comply with the "Criteria of Requirements for Progression" which sets out the specific expectations, including behavioural expectations, of prisoners in order to progress in the IEP scheme. The 'Behavioural Expectations' section applies to all prisoners on the revised scheme and they must be given a copy of this document. The criteria are designed to ensure a consistent approach across the prison estate. A copy of the document is attached. The following is an extract from the "Behavioural Expectations":
- Treating others in the prison with respect, avoiding violent, intimidating, threatening and abusive language and behaviour;
- Behaving in a way that respects the diversity of others in the prison;
- Acting with decency at all times remembering prisons/cells are not private dwellings (this includes not engaging in sexual activity);"
"33. All applications to re-locate (whether as a result of civil partnership or marriage or not) will be based on risk and sentence planning and appropriate operational considerations, including close relationships, as detailed above. Similarly, decisions as to the location of prisoners in homosexual relationships within an establishment will be based on the need to maintain good order and discipline and appropriate operational considerations, based on the particular circumstances of the prisoners involved and the particular circumstances of the prison. In the circumstances it is far too simplistic an approach to suggest that, for example, there should be guidance as to whether homosexual relationships should be facilitated by locating prisoners as close together as possible or restricted by separating. This fails to take into account the wide range of factors taken into account by Governors on a daily basis in reaching decisions as to where prisoners should be located. Far from providing any useful guidance to such prisoners, the suggestion that prisoners in homosexual relationships should be located as close together as possible or restricted by separating would cut across and undermine those types of complex decision.
34. The Secretary of State therefore does not accept that it is necessary or appropriate for there to be a specific policy governing how decisions are to be taken regarding prisoners who are homosexual partners. Prison policies do not distinguish between prisoners on grounds such as sexuality or marital status: on the contrary all establishments are required to treat all prisoners equally and to reach decisions without having regard to protected characteristics. That obligation, and the obligation not to act contrary to a prisoner's rights under the Human Rights Act 1996, adequately protects prisoners who are homosexual partners from discrimination."
The first issue: "in accordance with the law"
The appellants' case
"…law must be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual—if need be with appropriate advice—to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise."
"…..in order for the interference to be 'in accordance with the law', there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question."
Discussion of the first issue
"NOMS argued that it was difficult, if not impossible, for prison staff to determine whether a relationship between prisoners was consensual or coercive and the nature of the relationship could change over time.
Prison governors have expressed concerns about whether relationships formed in prison can ever be truly consensual as prisoners are constrained by their environment and may be forced into choices they would not make outside of prison. Similar concerns have been voiced by Human Rights Watch (2001)."
"The Court is naturally mindful of the fact that in the particular context of measures concerning national security, the requirement of foreseeability cannot be the same as in many other fields. In particular, the requirement of 'foreseeability' of the law does not go so far as to compel states to enact legal provisions listing in detail all conduct that may prompt a decision to expel an individual on national security grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights be subject to some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence, if need be with appropriate procedural litigation on the use of classified information. "
"….Whilst Art 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests."
Lord Justice McFarlane:
Lord Justice Fulford: