Bright, R (On the Application Of) v Secretary of State for Justice

Article 8 does not generally require a prison authority to create a policy specifically governing contact or sexual relationships between homosexual prisoners. The legality of separation decisions must be assessed by reference to the individual circumstances and the criteria applicable to prisoners generally. A sufficiently flexible framework may satisfy the requirement for protection against arbitrary interference where decisions are rational, justified and subject to complaints, appeals and judicial review. The court should not enter the arena of social policy or require new policy schemes without a proper legal basis.

Two renewed applications sought permission to apply for judicial review. Bright challenged his separation from his partner, another prisoner, following the partner’s urgent removal for his own protection after making serious criminal allegations. Keeley challenged his separation from his partner after prison staff believed they had twice engaged in sexual activity, and the later refusal to reunite them on the same wing.

The applicants alleged that the absence of specific guidance for homosexual prisoners created an unlawful risk of arbitrary decision-making and breached Article 8, including its procedural and justification requirements. They relied on Strasbourg authority concerning foreseeability and protection against arbitrariness, and on a domestic judicial review authority concerning an unacceptable risk of illegality.

1. Permission refused. Neither application disclosed a properly arguable challenge. The court was concerned with reviewing the particular decisions, not directing the formulation of social policy.
2. The separation of Bright’s partner was taken under the same criteria applicable to any prisoner who had made a serious allegation of criminal conduct against another prisoner. Article 8 did not require different criteria merely because the prisoners were sexual partners, nor did it require a specific policy for homosexual prisoners.
3. CG v Bulgaria [2008] 47 EHRR 51 and MM v the United Kingdom 24029/07 [2012] ECHR 1906 concerned protection against arbitrary interference and the accessibility and foreseeability of legal rules. Their reasoning did not establish that more detailed policies were legally required in the prison context. Here, prisoners had avenues of challenge through complaints, the Prison Ombudsman and judicial review.
4. The decisions concerning Keeley were also readily justified. Separation followed conduct believed to threaten prison order and to be inappropriate and distressing to others. The decisions fell within the recognised Article 8 purposes relating to prevention of disorder or crime, protection of health or morals, and protection of the rights and freedoms of others.
5. The applicants had been involved with prison officials and had opportunities to challenge the decisions. Keeley’s delay and the fact that both cases had become historic further fortified the refusal of permission, although neither matter was determinative alone.