Neutral Citation Number: [2013] EWHC 3514 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT 
Case No. CO/2693/2013, CO/12931/2012, CO/2324/2013
Royal Courts of Justice
Strand
London WC2A 2LL

Date: Thursday, 3 October 2013

B e f o r e:
MRS JUSTICE CARR
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Between:

	THE QUEEN ON THE APPLICATION OF BRIGHT	Applicant 	
	v		
	SECRETARY OF STATE FOR JUSTICE	Respondent 	
			
	THE QUEEN ON THE APPLICATION OF BRIGHT	Applicant 	
	v		
	GOVERNOR HMP WHITEMOOR	Respondent 	
			
	THE QUEEN ON THE APPLICATION OF KEELEY	Applicant 	
	v		
	SECRETARY OF STATE FOR JUSTICE	Respondent 	
- - - - - - - - - - - - - - -
- - - - - - - - - - - - - - -

Mr H Southey QC (instructed by Chivers) appeared on behalf of the First Applicant, the Second Applicant and the Third Applicant
Ms K Gallafent (instructed by The Treasury Solicitor) appeared on behalf of the First Respondent, the Second Respondent and the Third Respondent
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J U D G M E N T
1. MRS JUSTICE CARR:  I have before me two renewed applications for permission to apply for judicial review by two separate applicants, a David Bright and an Andrew Keeley, permission in both cases having previously been refused on paper. 
2. The applicants have been represented by Mr Southey QC and the defendant who is the same, a common defendant, by Kate Gallafent. I am grateful to counsel for the clear and succinct way in which they have expressed themselves on paper and orally.   
3. What follows is my ruling.  The permission hearing has in fact lasted well over one hour.  In this ruling, I will address those matters that I see as being most important to the applications.  If I do not mention a particular point that has been argued out before me it is not because I have overlooked it, it is because in an ex tempore judgment of this nature it seems to me more appropriate to concentrate on the core facts.  The full argument is a matter of record. 
4. So far as Mr Bright is concerned he was, until recently, a serving prisoner at Her Majesty's Prison Whitemoor in the Dangerousness and Severe Personality Disorder Unit.  He was convicted in June 2003 of buggery, gross indecency with a male child under the age of 14 and deception, and was sentenced to life imprisonment with a minimum term of 5 years. 
5. HMP Whitemoor is a maximum security prison for men in Categories A and B.  The Dangerousness and Severe Personality Disorder Unit has 3 spurs: red, blue and green. Which spur an individual prisoner is allocated to is based on the group in which he is being assessed or treated.  The defendant tells the court that the spur system and its allocation within it is a matter of careful construction and that as a matter of common sense makes sense. 
6. Mr Bright states that he is the long term partner of another prisoner, Mr Beau Beale. Mr Beale is also serving a sentence for wounding with intent. He, in September 2005, was given an indeterminate sentence for public protection. Whilst Mr Beale and Mr Bright are not formally civil partners they have a clear intention to become such.  The relationship between them developed following their imprisonment.  Thus it is argued that Mr Beale was not a "close relative" within the meaning of PFI 2011/16 entitling the two to visit each other if they were to be held in separate prisons.  Mr Beale was at HMP Whitemoor until 30 May 2013 when he was transferred to HMP Wakefield. 
7. Between March 2011 and 17 January 2013, the applicant and Mr Beale were on the same spur, red spur, although they were in different treatment groups. On 17 January 2013 Mr Beale was moved to his own protection as a matter of urgency. He had made serious allegation against two other prisoners, one a current prisoner, so serious that the matters were reported to the police. 
8. Mr Beale was separated in accordance with HMP Whitemoor's usual procedures so as to prevent witness intimidation and to ensure the safety of the parties.  The applicant states that on 30 January 2013 his request for inter-wing visits with Mr Beale was refused and inter-prison visits were, as I have previously described, it is said, ruled out on the basis of ineligibility.   
9. However, according to the defendant, in fact between 17 January and 30 May the applicant was able to visit Mr Beale on 3 March and shortly before the 30 May. Moreover, the defendant tells the court that the applicant has now been allowed monthly inter-prison telephone calls with Mr Beale. They have taken place on 11 July, 13 August and 12 September 2013. 
10. The applicant has also now been confirmed as eligible for inter-prison visits by video link. One such visit is scheduled to take place today. I am told by Mr Southey for the applicant that it is not clear for reasons unknown whether that visit will in fact be able to take place today but I have no more information on that particular topic. 
11. So far as Mr Keeley is concerned, he is serving an 8 year custodial sentence imposed in June 2010 for offences of indecent assault on a male under the age of 16.  Two males were involved: one his nephew and one a homeless minor, whom he had previously paid for prostitution services.   
12. Mr Keeley's partner, Mr John Doughty, is serving life imprisonment for 6 offences of rape, that sentence being imposed in 2003.  There was at one time as I understand it an application before the court to join Mr Doughty to these proceedings but that application has not been pressed before me. 
13. The applicant and Mr Doughty were first located together at HMP Maidstone on the Thanet Wing in December 2011.  On 26 March 2012 a prison officer discovered the applicant in Mr Doughty's cell and they were engaged in sexual intercourse. They were warned that their conduct was unacceptable.  No further action was taken at that stage but they were told in terms that their behaviour was not to be repeated. 
14. On 27 April 2012 another prisoner reported seeing Mr Doughty and Mr Keeley having sex.  There are factual disputes as to whether or not this in fact occurred and what, if, any admissions were made by the applicants, Mr Keeley and Mr Doughty, at the time. 
15. In the event, the Governor of the prison, HMP Maidstone, decided to separate the men. The reasons for that separation are set out succinctly in paragraph 7 of the acknowledgment of service.   
16. The separation was executed taking into account that (so Governor Huckle of HMP Maidstone believed at the time) they had been caught twice engaging in sexual activity during association time.  The second occasion had occurred a month after the first after both prisoners been expressly warned not to repeat any such behaviour.  
17. The applicants, Mr Keeley and Mr Doughty, had sought to prevent entry to the cell by wedging material underneath the door.  The prisoners could have been and were observed by staff and other prisoners.  Both the applicant and Mr Doughty's attitude upon being challenged about their behaviour was dismissive and it therefore appeared unlikely that they would not repeat such behaviour.   
18. Such behaviour was inappropriate and unacceptable and did not comply with the expectations set out in HMP Maidstone's Decency and Citizenship Strategy, whereby inappropriate and anti social behaviour will not be tolerated from staff, visitors, or offenders; nor in the custody compact, and, in any event, did not demonstrate the common decency with which offenders, staff and visitors should conduct themselves.   
19. For present purposes I do not need and do not seek to resolve any disputes of fact.note, however, that in the context of the applicants' response to the complaints in relation to the second incident, the response included a reaction that the prisoner who found them or saw them should first have knocked on the door. What is clear to me for present purposes is that Governor Huckle at the material time clearly had a genuine belief at all material times that there had been inappropriate sexual activity on 27 April 2012. 
20. On 28 April 2012, as a result of the above, Mr Doughty was moved to a different wing from that inhabited by Mr Keeley. Complaint and appeal were made by Mr Doughty. The applicant, too, complained and he asked to be put on the same wing as Mr Doughty. 
21. In November 2012, the two gentlemen underwent a civil partnership.  A few days later the applicant applied to be in the same wing, which application was rejected.  On 8 January 2013, there was an issue as to whether or not the two men would be allowed to cuddle and the applicant contends that he was told that cuddling was not permitted. 
22. It is right to record that just as Mr Bright is no longer at HMP Whitemoor, nor is Mr Keeley any longer at HMP Maidstone.  Mr Doughty was moved from HMP Maidstone on 10 May 2013 and is now at HMP Bure.  He was moved there for assessment to take place as to whether or not he was suitable for the extended sex offenders' training programme, and, if so suitable, was there to undertake such programmes. 
23. He received a visit from the applicant shortly before his move on 9 May 2013. The applicant himself moved from Maidstone on 20 August 2013 and now finds himself at HMP Littlehey. His move was because spaces became available and he was not ready for a prison offering sex offenders' training programmes because of his continued denial of offending. 
24. It is said for the defendant that in reality Mr Keeley's complaints amount to a challenge to two specific decisions: namely, firstly, on 29 April 2012 to move the applicant from the same wing as Mr Doughty which restricted contact to a degree; and, on 25 November 2012, not to move the applicant to another wing to be with Mr Doughty. 
25. For the applicants it is said in elegant and learned terms that these claims raise an important point of principle, namely the extent to which the prison service in this country grapples with gay prisoners.  At the heart of the application for permission is the applicant's submission that the absence of any clear guidance as to the criteria governing separation, the lack of any clear policy in relation to sexual activity or contact between gay prisoners, gives rise to an unlawful risk of arbitrary decision making. 
26. It is said also that there was a lack of adequate justification for article purposes for the decisions being made, a failure to comply with procedural obligations to be found inherently in Article 8, and a general irrationality. 
27. It is said that Article 8 is engaged when a prisoner is separated by being placed on a different wing that inevitably amounts on a restriction, on a restriction on contact.   
28. For present purposes and for the purposes of this application alone, I should record that the defendant is content to concede that, at least as an arguable point. 
29. But as I have said, at the heart of the applicant's case is the absence of policy and reliance in particular is placed on CG v Bulgaria [2008] 47 EHRR 51, and also MM v the United Kingdom 24029/07 [2012] ECHR 1906 [citation not read out in court - is this correct?] a judgment from Strasbourg. 
30. Paragraph 39 of CG records in terms:  
"The law must indicate the scope of any such discretion conferred on the competent authority so as to give the individual adequate protection against arbitrary interference." 
31. That provision is echoed in paragraph 193 of MM: 
"The requirement of any interference must be 'in accordance with the law', under Article 8 paragraph 2, means that the impugned measure must have some basis in domestic law and be compatible with the rule of law which is expressly mentioned in the preamble to the convention and inherent in the object and purpose of Article 8. The law must thus 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." 
32. If more were needed, Mr Southey also says that he can achieve his target via a purely domestic route relying on R (on the application of Suppiah & Ors) v Secretary of State for the Home Department [2011] EWHC 2 (Admin).  That is authority for the proposition that behaviour can be unlawful as a matter of domestic law if it gives rise to an unacceptable risk of illegality. 
33. Without doing full justice to the submissions made by Mr Southey, the simple point he makes is that there is a total material absence of policy in the defendant's procedures; obvious gaps, basic gaps.  The fact that the position of homosexual partners is different to the position of heterosexual partners he says implies a need for a clear policy and the absence of such a policy gives rise to an unlawful risk of inconsistent decisions. 
34. For the defendant it is said that it is important to look at the facts of the case: the decisions both in relation to Mr Beale and Mr Keeley are readily justified, there is no policy lacuna here, and there is nothing in any complaint of procedural unfairness based on lack of involvement. 
35. In my judgment it is necessary to look at the particular facts of the two applicants' particular circumstances and the individual decisions made in relation to them. This is a court of review and this is not a court in my judgment that should be entering into the arena of social policy or entering into an arena which directs or requires a defendant such as this to create social policies without involuntarily in what is on any view a difficult and delicate area.   
36. As is pointed out for the defendant in a prison estate context there are particularly complicated issues, for example arising out of the distinction between coercive and consensual sexual relationships. 
37. As to the absence of policy, looking at the facts first, in my judgment it is not properly arguable that the decision to move to Mr Beale was taken in anything other than accordance with the criteria applicable to any prisoner who has made an allegation of criminal conduct against another prisoner.  I do not consider it arguable that there should be different criteria, or that it is unlawful not to have specific criteria when the prisoner is the sexual partner of another prisoner in the same location. 
38. The decision, so it seems to me in CG and, indeed the decision in MM, is about the inadequacy of protection against arbitrary interference.  The context obviously in each of those cases is very different to the context here but that is the thrust of the rationale. 
39. The court in CG held that on the facts of that case judicial review did not provide adequate protection.  In my judgment it is not properly arguable that there is any parallel inadequacy here.  If a prisoner is moved here he has the right to appeal, he has the right to complain to the Prison Ombudsman and, ultimately, the right to bring a judicial review application such as this.   
40. I cannot identify any reason why the facts here lead to the conclusion that there is a need for a specific policy where homosexual prisoners are concerned.  The fact that it may be necessary for some purposes to take into account the fact that a prisoner is homosexual and in a relationship with another prisoner cannot result in a requirement for the establishment of a specific policy under Article 8.   
41. Nothing in my judgment in either CG or MM makes it arguable that more is required as a matter of law. I have in mind in particular paragraph 40 of CG where in the context of considering foreseeability, it is said in terms: 
"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." 
42. In my judgment the applicants are wrong to contend that there is a total absence of policy. There clearly are statements albeit at a general level as to the requirements for common decent behaviour to be found in the custody compact statement and the foreword to the decency statements before the court in the bundles. 
43. The same line of reasoning applies as much for Mr Keeley as it does for Mr Bright. I do not consider it arguable that the absence of a specific policy on the facts here gives rise to a breach of Article 8.  Justification for the decisions can readily be found.  In so far as Mr Bright is concerned I understand it to be effectively conceded that the decisions taken were justified on any basis. It was self evidently necessary on the facts to move Mr Beale.  The applicant never asked to be transferred to the same new spur as Mr Beale, and the applicant was on the red spur for a good reason, namely to undertake the appropriate programme with his group.   
44. Equally, so far as Mr Keeley is concerned, the separation in question was clearly justified as necessary in the interests of the prevention of disorder, or crime, for the protection of health or moral reasons, or for the protection of rights and freedoms of others; as their behaviour not only gave rise to a risk to good order in the prison but was disturbing and distressing to those who encountered it.  I refer back to the reasons behind Governor Huckle's decision in the Keeley matter.   
45. In any event, I note that Mr Keeley and Mr Doughty continue to be able to see each other working periods, lunch and other prison activities and religious services and of course, as I have already outlined, Mr Keeley is able to apply for an inter-prison visit. 
46. Equally, the decision not to move the applicant, Mr Keeley, in November 2012 was one that that was not taken in the normal course of events other than for operational/security or medical reasons.   
47. Mr Southey fairly accepts that once the policy ground of claim falls away his other points are weakened, although he does not accept they necessarily fall away but it seems to me that falling with the first central ground of claim so falls away the complaints of procedural irregularity.   
48. Both Mr Bright and Mr Keeley were involved with prison officials at the time of the decisions in question.  So far as Mr Bright was concerned, he was met by a prison official soon after the move to explain what had happened and on the evidence before me he agreed and accepted those matters.   
49. He then had the opportunity to ask to be moved with Mr Beale but he did not do so.  He was given the opportunity to object and he did by way of formal complaint.  That complaint was rejected and there was no appeal from that. 
50. So far as Mr Keeley is concerned, he, as I have indicated together with Mr Doughty, were both spoken to at the times of the incidents and had opportunities to challenge the allegations and to make complaints, opportunities of which they availed themselves.  
51. For those reasons, in essence, I am not persuaded that these are claims on which I should grant permission but I should say that that conclusion is fortified by two additional matters.  There has been delay on the part of Mr Keeley in bringing this claim. Whether the claim is treated as one that is on-going or not, the trigger and first index event took place as long ago as April 2012 and the claim form from him is at least 7 months or so after that.  No good reason, indeed no reason for that delay at all has been advanced other than the submission that this is in fact a claim based on on-going breaches.   
52. I also bear mind the fact that on the facts that I have outlined these matters are now historic.  The applicants are no longer in the Index Prison prisons.  That would, by itself, not be a determinative matter but when one adds it to it to the pot of the other reasoning, it is one that I do take into account. 
53. In conclusion, on the facts of these two cases, I have concluded that there is no properly arguable challenge.  The defendant's decisions were rational.  It is not for the court to step in on a wider basis and I am not persuaded, despite the able advocacy from Mr Southey, that there is some unlawful absence of policy or criteria that leads to an arguable position that the applicants have been unlawfully treated by virtue of a breach of their Article 8 rights.