Hopkins, R (on the application of) v Sodexo / HMP Bronzefield & Ors

The claimant challenged a decision of HMP Bronzefield, pursuant to its "Decency/Managing Relationships Policy", to prevent her and her civil partner sharing a cell. The court considered whether the prison policy was enforceable in law (in particular in light of ss.47(1) and 52(1) Prison Act 1952), whether the policy was unlawfully inflexible, whether the decision engaged or breached Articles 3 or 8 ECHR, and whether the Equality Act 2010 duties (notably ss.6, 20 and 149) were infringed by a failure to make reasonable adjustments for a disabled prisoner.

The court rejected the claimant's challenge. It held that the intimate-relationship restriction could legitimately be regarded as required for order and discipline in the prison and therefore did not require invalidation under the Prison Act argument; that an inflexible policy could be lawful where exceptions would undermine an important statutory aim; that the facts did not meet the high threshold for Article 3; that Article 8 was not infringed given the prison context, the continued substantial daily contact available to the couple and the consultation and assessment steps taken; and that the prison had satisfied its equality duties by reasonable steps and assessments and by offering further healthcare assessment which the claimant declined.

The claimant, who had mobility and chronic back pain and had been in a civil partnership with the interested party, challenged the prison's decision on 16 February 2015 to cease permitting cell-sharing pursuant to the prison's Decency/Managing Relationships Policy (the "intimate relationship restriction"). The claimant alleged several grounds: (i) the policy required a statutory instrument under ss.47(1) and 52(1) Prison Act 1952 and was therefore unenforceable; (ii) the policy was unlawfully inflexible and the prison failed to consider the claimant's individual circumstances; (iii) the decision amounted to degrading treatment contrary to Article 3 ECHR; (iv) the decision engaged and interfered with Article 8 ECHR; and (v) the prison breached the Equality Act 2010 by failing to make reasonable adjustments under s.20 and failing to have due regard under s.149(1).

The court identified and decided the discrete issues: (1) whether the intimate relationship restriction had to be contained in a statutory instrument under the Prison Act; (2) whether the policy was unlawfully inflexible; (3) whether Article 3 was engaged and breached; (4) whether Article 8 was engaged and breached and, if so, whether interference was justified under Article 8(2); and (5) whether the claimant was disabled within the meaning of the Equality Act and, if so, whether reasonable adjustments were required and the public-sector equality duty was observed.

On the statutory instrument point the judge concluded the restriction was capable of being justified as required for order and discipline and therefore did not fall to be struck down for non-compliance with the Prison Act as argued by the claimant. Relying on evidence from prison specialists, the judge accepted that prohibiting cell-sharing by known intimate partners was justified to avoid the appearance of condoning sexual activity and to protect order and discipline and to avoid intrusive and resource-intensive enquiries about consent in a custodial setting.

On inflexibility the court applied authority that a policy may lawfully exclude exceptions where permitting exceptions would substantially undermine the statutory purpose. The intimate-relationship restriction was held to fall within that exception because permitting ad hoc exceptions would risk the prison's order and discipline objectives.

On Article 3 the judge applied the high "minimum level of seriousness" threshold: the evidence showed the prison conducted assessments (occupational therapy report, GP input, multidisciplinary meetings), offered healthcare reassessment (which the claimant declined) and took measures to mitigate disadvantage. The court found the facts did not reach the threshold for degrading treatment and dismissed the Article 3 claim.

On Article 8 the court held that the restrictions inherent in detention meant the claimant's Article 8 rights were not engaged by the inability to share a cell, particularly because the couple remained on the same wing in adjoining cells with regular, substantial contact outside lock-up hours, and because the prison had considered and assessed the claimant's needs. Even on the assumption Article 8 was engaged, the decision was held to be justified and proportionate under Article 8(2).

On the Equality Act issues the judge concluded the claimant was a disabled person but that the prison had taken reasonable steps to avoid substantial disadvantage (occupational therapy assessment, equipment, referrals, adapted cell provision and offers of further assessment). The s.20 duty was held to have been satisfied and the s.149 public-sector equality duty had been given due regard.

Procedurally the claimant had permission to proceed. The application was dismissed.

This first-instance judicial review application is dismissed. The intimate-relationship restriction in the prison policy was held to be capable of lawful application as necessary for order and discipline and did not require invalidation under the Prison Act argument; a blanket policy can be lawful where exceptions would undermine an important statutory aim; the facts did not meet the minimum severity threshold for Article 3; Article 8 was not engaged (and in any event the interference was justified and proportionate under Article 8(2)); and the Equality Act duties (s.20 and s.149) were satisfied by the prison's assessments and steps.