Bright & Anor v The Secretary of State for Justicee

For the purposes of article 8(2) of the European Convention on Human Rights, the required precision of published policy is contextual. Complex prison decisions about allocation, separation and conduct may lawfully be left to local discretion where detailed rules are impracticable, the discretion is confined by statutory purpose, equality and public-law duties, and effective challenge is available.

Ordinary standards of decency and insulting conduct need not be exhaustively defined. Separation for safety or repeated inappropriate conduct, rather than because of a same-sex relationship itself, may be proportionate where contact remains available. Article 8 procedural fairness is also context-specific. Advance representations are not invariably required, particularly where the material facts are undisputed and the process as a whole affords adequate protection.

Mr Bright and Mr Beale, and Mr Keeley and Mr Doughty, were serving prisoners in long-term same-sex relationships. Mr Bright and Mr Beale intended to enter a civil partnership. Mr Keeley and Mr Doughty had entered one. Prison decisions separated each pair and, in Mr Keeley’s case, regulated aspects of contact after repeated sexual conduct in prison.

Carr J refused permission to apply for judicial review: [2013] EWHC 3514 (Admin). Laws LJ later granted permission and retained the proceedings in the Court of Appeal. The central issues were whether the relevant policies and decisions satisfied article 8(2) of the European Convention on Human Rights, whether the separations were proportionate, and whether the decision-making procedures were fair.

1. The court rejected the challenges and refused both applications for judicial review. Lord Dyson MR gave the judgment, with which McFarlane and Fulford LJJ agreed.

2. The article 8(2) requirement that an interference be in accordance with the law did not require a detailed published policy specifying when prisoner partners should be located together or separated. The requisite foreseeability depends on context. Allocation and separation decisions involve variable and difficult assessments, including safety, coercion, order and operational needs. The reasoning in CG v Bulgaria (2008) 47 EHRR 51 supported a realistic approach where detailed advance definition is impracticable.

   The local discretion was not unconstrained. It had to be exercised for the statutory purpose, without discrimination and consistently with ordinary public-law requirements, including Wednesbury reasonableness. Where policy is as precise as practicable, adversarial challenge and judicial review provide an important safeguard against arbitrariness. The absence of a policy directed specifically to homosexual prisoner partners therefore did not render the decisions unlawful.

3. The behavioural policies were sufficiently clear. Terms such as insulting and indecent have ordinary, intelligible meanings. Article 8(2) did not require an exhaustive list defining every form of sexual activity or physical contact which would be unacceptable in prison.

4. The separations were proportionate. Mr Beale’s move was for his safety and operational reasons, not because of his relationship with Mr Bright. Mr Doughty was moved because the couple had repeatedly engaged in inappropriate sexual conduct after warning, not because they were partners; no additional disciplinary punishment was imposed, and they retained substantial opportunities for contact through work and other activities.

5. Article 8 procedural fairness depends on the decision and its circumstances. Secretary of State for the Home Department v SP [2004] EWCA Civ 1750 concerned a disputed factual basis for segregation and did not impose a universal requirement for advance representations. Here the material facts were not disputed. Mr Bright had an opportunity to object, and Mr Keeley’s interview with the governor was adequate. Taking the complaint and appeal processes into account, each appellant was sufficiently involved in the process as a whole.

• Court of Appeal (Civil Division): Laws LJ granted permission to apply for judicial review and retained the proceedings. The court refused the applications: [2014] EWCA Civ 1628.

• High Court, Queen’s Bench Division, Administrative Court: Carr J refused permission to apply for judicial review: [2013] EWHC 3514 (Admin).