England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN's BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mrs Justice Carr
[2013] EWHC 3514 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th December 2014

Master of the Rolls:

1. At all material times, both appellants were serving prisoners. Until the decisions that gave rise to these claims, Mr Bright was detained in the same "spur" in HMP Whitemoor as his long-term partner, Mr Beau Beale. Mr Bright and Mr Beale intend to become civil partners. Mr Keeley was detained on the same wing in HMP Maidstone as his long-term partner, Mr John Doughty. Mr Keeley and Mr Doughty became civil partners on 22 November 2012.
2. The Secretary of State has taken a series of decisions in each case which have served to separate Mr Bright and Mr Keeley from their long-term partners. It will be necessary to consider these decisions in detail. In short, it is submitted on their behalf that the decisions were in breach of their rights under article 8 of the European Convention on Human Rights ("the Convention") which provides:

"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…. "

3. Managing same-sex partners who are serving prisoners detained in close proximity with each other in the same prison poses particular challenges for the prison authorities. These cases illustrate some of them all too clearly. The main question that we have to decide is whether the policies which were relevant to the decisions which are challenged in these proceedings were "in accordance with the law" within the meaning of article 8(2) of the Convention i.e. whether the policies were sufficiently clear and precise to avoid the risk of arbitrary decision-making by the prison authorities. The issues that are raised are of general importance both to prisoners and prison authorities alike. Carr J refused the claimants permission to apply for judicial review of the decisions which they seek to challenge. Laws LJ gave them permission to apply for judicial review and retained the proceedings in the Court of Appeal.

The facts in the case of Mr Bright

4. Mr Bright was convicted in June 2003 of buggery and gross indecency with a child under the age of 14. He was sentenced to life imprisonment with a minimum term of 5 years. HMP Whitemoor is a maximum security prison. The Dangerous and Severe Personality Disorder Unit has 3 spurs (Red Spur, Blue Spur and Green Spur). In September 2005, Mr Beale was given an indeterminate sentence for public protection for an offence of wounding with intent. Between March 2011 and 17 January 2013, Mr Bright and Mr Beale were both on the Red Spur. On 17 January 2013, Mr Beale was moved to Green Spur for his own safety. This was following his complaint that he had been raped by a former prisoner and assaulted by a currently serving prisoner. The allegations had been reported to the police for investigation. It is accepted by Mr Bright that the decision to move Mr Beale was taken to protect Mr Beale and had nothing to do with his relationship with Mr Bright.
5. On 30 January 2013, Mr Bright's request for inter-spur visits to Mr Beale was refused, although "goodbye" visits were arranged on 3 March and 29 May 2013. On 6 March 2013, Mr Bright issued these judicial review proceedings challenging the decision to separate him from Mr Beale and to restrict contact between them. On 30 May, Mr Beale was moved from HMP Whitemoor to HMP Wakefield, and the Secretary of State has to date not permitted Mr Bright and Mr Beale to have an inter-prison visit in person. It is intended that contact will take place by video-link and telephone, but Mr Bright alleges that the Prison Service has failed to organise or approve video-link and telephone appointments. There is, however, no discrete judicial review challenge to what has occurred since the issue of the proceedings.

The facts in the case of Mr Keeley

6. Mr Keeley is serving an 8 year sentence imposed in June 2010 for indecent assault on a male under the age of 16. Mr Doughty is serving concurrent life sentences with a minimum term of five and a half years that were imposed in 2003 for six offences of rape. The two men were first located together at HMP Maidstone on Thanet Wing in December 2011. On 26 March 2012, they were discovered by a prison guard in Mr Doughty's cell engaging in sexual intercourse. They were warned that this was unacceptable behaviour. No further action was taken, but they were told not to repeat it.
7. On 27 April 2012, another prisoner reported seeing Mr Doughty and Mr Keeley engaging in sexual intercourse in Mr Doughty's cell. There was a dispute after the decision to separate them as to whether or not this had occurred although Governor Huckle's evidence was that they had admitted it when he spoke to them at the time. Mr Keeley no longer denies that he and Mr Doughty were engaged in sexual intercourse. All that he now says is that they had done their best to think of others by wedging the door closed so that nobody would "stumble in on something inappropriate". In the event, the Governor of the prison (Governor Huckle) decided to separate the men. His reasons for this decision were: (i) the men had been caught twice engaging in sexual activity during association time; (ii) the second occasion took place a month after the first, in circumstances where they had both been warned not to do it; (iii) they had sought to prevent entry into the cell by wedging material underneath the door; (iv) the prisoners could have been (and were) observed by staff and other prisoners; (v) the attitude of both men on being challenged was dismissive, so that it was likely that they would repeat that behaviour; and (vi) it was inappropriate and unacceptable behaviour.
8. On 29 April, Mr Doughty was moved to another wing of the prison. On 9 June, Mr Keeley made a formal complaint about the decision to move Mr Doughty. The complaint was rejected by the Head of Reducing Offending on 29 June in these terms:

"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."

9. On 22 November, the two men entered into a civil partnership. On 25 November, Mr Keeley applied to be moved to Kent Wing to join Mr Doughty. This application was rejected on the grounds that inter-wing transfers other than from Weald Wing (the induction wing) were only made for operational, security or medical reasons and Mr Bright's request did not satisfy any of these reasons. Three further decisions that were made regarding contact between the two men are challenged. These are: (i) the decision on 4 January 2013 to move them to separate workbenches following receipt of allegations that they were engaging in sexual activity under the workbench during work periods; (ii) the decision on 8 January 2013 to tell them that it was unacceptable to cuddle in the workshop; and (iii) the decision to ban Mr Keeley from attending the Multi-Faith Centre following intelligence that he and Mr Doughty had been touching each other intimately during the Church service and were planning to act inappropriately during the church service on 12 January 2013.
10. On 13 January 2013, Mr Keeley issued these judicial review proceedings challenging the decision to separate him from Mr Doughty and to restrict contact between them thereafter. On 10 May 2013, it was decided to move Mr Doughty to another prison (HMP Bure), but this decision is not the subject of challenge in these proceedings.

The issues

11. The three issues that arise on this appeal are (i) whether (a) the decision to separate Mr Bright from Mr Beale and Mr Keeley from Mr Doughty and (b) the three subsequent decisions to regulate the contact between Mr Keeley and Mr Doughty were "in accordance with the law" within the meaning of article 8(2) of the Convention; (ii) whether the separations were justified (i.e. proportionate) for the purpose of article 8(2); and (iii) whether the decision-making process governing the separations complied with the procedural obligations inherent in article 8. The proceedings both here and below have been conducted on the assumption that article 8 is engaged on the facts of these cases. I shall proceed on the same basis.

The Policy

12. Mr Southey QC submits that the only sources of relevant policy are insufficient to provide meaningful guidance to a prisoner who seeks to avoid separation from a fellow prisoner with whom he is in a long-term relationship. The relevant policies are described and explained in the witness statement of Jacqueline Townley dated 3 October 2014. She is Acting Joint Head of the Policy and Regulation Team, Equality, Rights and Decency Group, Directorate of National Operational Services.
13. She says that, once a prisoner has been categorised, they will normally be allocated to a prison of the relevant security category. There is, however, no central policy covering the allocation process. This is because of the numerous, complex and wide-ranging issues involved in allocating prisoners. At para 12 of her statement, she sets out some of the factors that are taken into account in making allocation decisions. At para 14, she says:

"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."

14. At para 16, she says that location within the actual prison is based on a range of factors taking account of individual circumstances. "The process is complex and is a matter for local discretion". Policy document PSI 16/2011 "Providing Visits and Services to Visitors" provides guidance as to how prisoners may be encouraged to maintain outside contacts and meaningful family ties. Thus, where prisoners who are close relatives are both in custody, they are able to maintain contact through written correspondence, inter prison telephone calls and inter prison visits. A "close relative" is defined as a spouse/partner (including a person, whether of the same or different sex, with whom the prisoner was living as a couple immediately prior to imprisonment) and, amongst others, a civil partner. Those who have clearly demonstrated the intention to register a civil partnership, but have not yet done so, may also be included within the definition of "close relative" for the purposes of social visits.
15. Ms Townley deals with issue of sexual relationships in prison in some detail in her statement:

"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);"

16. Finally, she says this:

"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

17. Mr Southey submits that the guidance contained in PSI 16/2011 only applies to visits where prisoners are detained in different prisons and only applies to civil partners or prisoners who were living together before imprisonment: they do not, therefore, apply to persons in the position of Mr Bright or Mr Keeley. There is, therefore, no published guidance in relation to the location and separation of prisoners.
18. He also submits that the general statements that prisoners should behave in a decent manner provide no guidance as to what behaviour will be classed as decent or indecent. He says that the policy PSI 47/2011 is too vague. For example, it does not define "sexual" acts; it gives no guidance as to when a sexual act could be found to be "offensive"; it gives no guidance as to when a prisoner has a "reasonable expectation of privacy"; and it is uncertain as to whether sexual activity is unacceptable where there is an expectation of privacy.
19. Mr Southey says that there is no policy which deals with the following: (i) the extent to which gay partnerships are to be encouraged or facilitated by, for example, locating prisoners in relationships as close together as possible; (ii) the extent to which consensual non-sexual behaviour that is regarded as acceptable in the community (e.g. hugging) becomes unacceptable in prison; (iii) even in relation to sexual acts, there is apparent uncertainty as to Prison Service policy. As to this last point, Mr Southey relies on the fact that, when Kyra Leader (an experienced member of the Prison service staff) was informed that Mr Keeley and Mr Doughty had engaged in sexual intercourse, she needed to take advice as to what to do. She was apparently advised that sexual contact between prisoners should not lead to a prisoner being punished through the Incentives and Earned Privileges scheme. Nevertheless, the two men received a warning and the subsequent decision to move Mr Doughty was actuated by their sexual activity.
20. It is against this background that Mr Southey submits that the absence of sufficiently clear relevant policies renders the decisions under challenge unlawful. He says that the rule of law calls for a transparent statement by the executive of the circumstances in which decisions such as those under challenge will be made: see R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paras 34-35 and R (Haney) v Secretary of State for Justice [2013] EWHC 803 (Admin) per Lang J at paras 81-83. The requirement of clear policy guidance is not only a requirement of the rule of law. It is also a requirement of article 8(2). The argument concentrated on article 8(2) and I shall do the same.
21. The principles that the ECtHR applies when considering whether a decision is "in accordance with the law" are not in doubt. They have been stated many times. For example, in MM v UK (application no. 24029/07), the court said at para 193:

"…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."

22. Thus a measure that is capable of interfering with article 8(1) rights will not be "in accordance with the law" if the breadth of the discretion given to the decision-maker gives rise to a risk of arbitrary or discriminatory decisions: Gillan v UK (2010) 50 EHRR 45 at para 85. In R (T) v Chief Constable of Greater Manchester Police [2014] 3 WLR 96 at para 114, Lord Reed (expressing a view that was endorsed by the majority of the Supreme Court) said:

"…..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."

23. Mr Southey submits that there are insufficient safeguards to protect prisoners who are in relationships from being separated by arbitrary decisions. There is no adequate guidance as to how the relevant discretions should be exercised. In particular, there is no guidance as to whether relationships should be facilitated by locating prisoners as close together as possible or restricted by separating them. There is also no guidance as to whether and, if so, to what extent behaviour that is acceptable in the community is unacceptable in prison. There is a particular need to be alert to the possibility of arbitrary decisions in a context where, historically, there has been discrimination: see Kiyutin v Russia (application no 2700/10) at para 63. In that case, the court said that, if a restriction on fundamental human rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, the State's margin of appreciation "is substantially narrower and it must have very weighty reasons for the restriction in question". Thus, for example, the need for guidance is particularly important where there is a real possibility that prison officers might prevent homosexual prisoners from cuddling when there is no good reason for doing so. Guidance is required to prevent effect being given to homophobic attitudes. The existence of an internal right of appeal and the availability of judicial review is no answer: they do not provide adequate safeguards.

Discussion of the first issue

24. It will be seen that, although these judicial review challenges are directed to the lawfulness of particular decisions, Mr Southey's submissions involve a broad attack on the relevant policies of the Secretary of State in so far as they affect the position of homosexual prisoners. He says that decisions taken to implement these policies are not "in accordance with the law" because the policies themselves are insufficiently precise for the purposes of article 8(2).
25. Before assessing Mr Southey's case, I need to set out a number of preliminary points made by Ms Gallafent QC which I consider to be relevant. First, it is important to emphasise the far-reaching effect of Mr Southey's submissions. While the focus of them is on the requirement for guidance that is specific to prisoners who are in a homosexual relationship with other prisoners, the logic of Mr Southey's argument is that in every case where article 8 is engaged, there must be clear and precise guidance as to how any decision will be taken if it is to be "in accordance with the law". This is because the requirement that decisions which engage article 8 are "in accordance with the law" applies to decisions affecting all relationships, and not only to decisions which affect specific groups. Article 8 includes the right to establish and maintain relationships with other human beings generally, and not only the right to establish and maintain sexual relationships. It is a striking (and surprising) feature of Mr Southey's argument that, if he is right, the transfer of Mr Beale to another spur for his own safety was not "in accordance with the law" because there is no published guidance setting out the policy at HMP Maidstone regulating wing moves. It is accepted by the Secretary of State that there is no published guidance stating that prisoners may be moved for reasons of safety, security, the need to preserve order, or for medical reasons.
26. Secondly, the nature of the guidance which is said to be required (guidance as to (i) whether homosexual relationships should be facilitated by locating prisoners as close together as possible and (ii) whether and to what extent behaviour that is acceptable in the community is unacceptable in prison) demonstrates the inherent difficulty of any such guidance. The issue of whether a particular sexual relationship between serving prisoners should be facilitated is complex. There is a fundamental difficulty in the prison context of distinguishing between consensual and coercive relationships. The Howard League for Penal Reform has established an independent Commission on Sex in Prison. The Commission has produced a briefing paper entitled "Consensual sex among men in prison". The paper includes the following:

"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)."

27. Ms Gallafent submits that it is therefore unrealistic to start from the position that a sexual relationship between prisoners is consensual and should be facilitated. The circumstances of such relationships will vary and may be difficult to assess. What meaningful guidance can be given to officers to assist them in determining how much weight should be given to a sexual relationship? James Whittaker is the Custodial Manager at HMP Whitemoor. He illustrates the problem in his witness statement. At para 12, he says that Mr Bright had previously given an assurance that he was not in a sexual relationship with Mr Beale. This conversation took place in the context of an application that Mr Bright and Mr Beale should be permitted to shower together. During the course of the therapeutic work undertaken in the Dangerous and Severe Personality Disorder Unit, other prisoners on the spur disclosed their concern that Mr Beale might be the victim of Mr Bright and perceived that some of Mr Bright's behaviour towards Mr Beale was grooming. Mr Whittaker says that as both prisoners had been diagnosed with a mental health disorder, they were considered to be vulnerable adults. The decision was, therefore, taken to separate them to ensure the safety of all the prisoners. It is unnecessary to explore the details of this any further. The point is that relationships between serving prisoners are often complex and difficult to assess.
28. The short answer to Mr Southey's broad submission on "in accordance with the law" is provided by CG v Bulgaria (2008) 47 EHRR 51 at para 40:

"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. "

29. CG concerned a deportation order made on national security grounds. Para 40 is important because it shows that the article 8(2) requirement of foreseeability does not always require that there be detailed provisions defining precisely what measures may be taken interfering with an individual's article 8(1) rights. The Strasbourg jurisprudence adopts a realistic and pragmatic approach to the issue of what the requirement of "in accordance with the law" entails. It acknowledges that there are some contexts in which it is impracticable to define with precision how a discretionary power will or may be exercised. The more complex the context and the greater the range of circumstances in which the power may be exercised, the less likely it is that article 8(2) will require a precise and detailed definition of the manner in which the power will or may be exercised. It is no part of "in accordance with the law" to require public bodies to do what is impossible or impracticable.
30. In some contexts, it is neither impossible nor even very difficult to define in advance the way in which a discretion will or may be exercised. In such cases, the principle of certainty enshrined in the expression "in accordance with the law" requires a clear statement of how the discretion will or may be exercised. If that statement is absent in such cases, the shortcoming may not be made good by the fact that the decision is susceptible to challenge in adversarial proceedings before an independent authority or a court and the existence of the remedy of judicial review may not save the day: see, for example, Gillan v UK (2010) 50 EHRR 45 at para 86. But where the statement as to how a discretion will or may be exercised is as precise as is practicable in all the circumstances, the fact that a decision may be challenged in adversarial proceedings provides the important safeguard against arbitrary decision-making that is required by "in accordance with the law".
31. Ms Gallafent relies on R (Earl Francis) v West Midlands Probation Board [2010] EWCA Civ 1470 in support of her response to Mr Southey's general challenge to the policies that are in play. In that case, this court considered and rejected an argument advanced by Mr Southey which was very similar to that advanced by him in the present case. A prisoner argued that a refusal to transfer his probation service supervision was not "in accordance with the law". He said that, in the absence of a policy specifying the circumstances in which the transfer of supervision of a pre-release prisoner was appropriate, the law governing the exercise of the discretion was not sufficiently precise for the purposes of article 8(2).
32. The court recognised that local probation boards enjoyed a broad discretion in relation to the transfer of supervision, but rejected the argument that the exercise of the discretion was not "in accordance with the law". At para 32, Richards LJ said that, in exercising their discretion, the boards were required to have regard to the aims of the statute; although further guidance would be "helpful", important guidance existed in the form of the key principles set out in the relevant circular; and the exercise of the discretion was also constrained by the general principles of public law. Mr Southey seeks to distinguish this authority on the grounds that (i) there was no issue of historic discrimination in the context of that case; and (ii) at para 28 Richards LJ said (on the assumption that article 8 was engaged at all) that the refusal of a transfer of supervision interfered with article 8(1) rights only "to a very limited extent". I acknowledge these points of difference. But in my view neither of them bears significantly on the question whether an interference is "in accordance with the law". It seems to me that this authority lends support for the respondent's case.
33. With these general observations in mind, I turn to the particular challenges made by Mr Southey. I start with the issue of separation. It is true that there is no published policy defining the circumstances in which prisoners are located or separated, still less a policy defining the circumstances in which homosexual prisoners are separated from their partners. Ms Townley has explained the reason for this: see paras 24 to 34 of her witness statement (para 15 above). In my view, for the reasons that she gives, the case falls within the scope of para 40 of CG v Bulgaria. The reasoning of Richards LJ in R (Earl Francis) is relevant here. The discretion to separate prisoners is not exercised in a vacuum and is not free of all constraints. First, the discretion must be exercised within the confines of the statutory purpose for which the power is given. It cannot be exercised for any other purpose. Secondly, it is unlawful for the authorities to discriminate against prisoners in exercising the discretion. Thirdly, the duty not to act unreasonably in the Wednesbury sense acts as a further brake on arbitrariness.
34. In any event, even if that is wrong, a complaint about the absence of a separation policy cannot avail Mr Bright. He and Mr Beale were separated for reasons which had nothing to do with their sexual relationship, but in order to protect Mr Beale from danger from a former prisoner and a currently serving prisoner. It follows that whether there should have been a policy explaining whether homosexual relationships were to be facilitated or to be restricted was irrelevant to the decision that was taken to separate Mr Bright and Mr Beale.
35. It is true that the decision to separate Mr Keeley and Mr Doughty was taken for reasons which were related to their sexual relationship. At first sight, therefore, the absence of a separation policy may appear to have more relevance to Mr Keeley's case than that of Mr Bright. Governor Huckle was aware of the sexual relationship between Mr Keeley and Mr Doughty. The reason why he decided to separate them was because he considered their behaviour to be indecent, insulting, and offensive and contrary to PSI 47/2011 and the Custody Compact which required the men to comply with the Criteria of Requirements for Progression. I consider below Mr Southey's submissions that these policies are not "in accordance with the law". For the reasons that I have given at para 33 above, however, I cannot accept that the failure to publish a policy explaining whether homosexual relationships are to be facilitated or restricted means that decisions to separate prisoners who are in a homosexual relationship are not "in accordance with the law". The points made by Ms Townley (in conjunction with the constraints to which I have referred at para 33) provide a complete answer to Mr Southey's submission.
36. I turn, therefore, to the policies regulating behaviour that are challenged by Mr Southey. He submits that these are not "in accordance with the law" because they do not state with precision what kind of behaviour is considered to be "insulting" and "indecent" and what kind of behaviour which is regarded as acceptable in the outside community is regarded as unacceptable in prison.
37. I would reject these submissions. The circumstances in which a prisoner might conduct himself in an "inappropriate and antisocial" way or fail to "be responsible in [his] actions, be polite and treat all prisoners and staff with respect" (see Mr Keeley's Custody Compact) can vary greatly. They may be difficult, if not impossible, to define in detail. Thus the fact that these statements provide no guidance as to what behaviour will be classed as decent or indecent is not a proper basis for holding that the guidance is "not in accordance with the law". Article 8(2) does not require prison authorities to list and define the circumstances in which conduct, including physical contact between two prisoners, will cross the line from being appropriate and acceptable behaviour to being inappropriate and/or insulting behaviour. The words "insulting" and "indecent" are ordinary words whose meaning is clear and well understood. They are sufficiently clear to form the basis of criminal offences. It is unrealistic (and not required by the Strasbourg jurisprudence) to expect the Secretary of State to provide a list of examples of "insulting" and "indecent" or other inappropriate behaviour. It is also unrealistic and unnecessary to expect him to spell out in detail the kind of physical contact between prisoners (including cuddling) that is regarded as indecent or otherwise unacceptable. In my view, these challenges to the policies are without foundation.

Proportionality

38. The second ground of challenge is that the decision to separate Mr Bright and Mr Keeley from their partners was not "necessary in a democratic society" i.e. not proportionate. Mr Southey submits that the Secretary of State has not discharged the burden of showing that the interference with the claimants' article 8 rights was proportionate. He submits that (i) there is no evidence that consideration was given to the extent to which the separation would interfere with the men's private, sexual lives and (ii) this implies that the decisions in question were taken on the basis that the relationships should not be facilitated. He says that no good reason has been given as to why their relationships should not be facilitated. In the case of Mr Bright, on the assumption that the decision to move Mr Beale was taken in order to protect him (Mr Beale), Mr Southey says that there was no need to further undermine the relationship between the two men by allocating them to separate prisons (as opposed to different spurs within the same prison). As regards Mr Keeley, Mr Southey says that the decision to separate him and Mr Doughty on the grounds of their sexual behaviour means that prisoners can be punished, by restricting their relationship, on the sole grounds that they were engaged in such a relationship.
39. I would reject these submissions for the reasons given by Ms Gallafent. The decision to move Mr Beale was made for his own safety. There is no challenge in these proceedings to the decision to move him to a different prison (rather than to a different spur in the same prison). In any event, Mr Whittaker explains at para 38 of his witness statement that Mr Beale could not remain at HMP Whitemoor because he was no longer in treatment and it was necessary to transfer out a number of such prisoners in order to receive a new intake of prisoners for assessment for treatment. There was, therefore, ample justification for the decision to move Mr Beale which had nothing to with his sexual relationship with Mr Bright. The submission that the decision to move Mr Beale was disproportionate is wholly without merit and should not have been advanced.
40. As for Mr Keeley, the assertion that there is no evidence that any consideration was given to his relationship when the decision was made to separate him from Mr Doughty is incorrect. Officer Huckle has given evidence about this. In his witness statement, he says at para 12 that he was fully aware that the two men were in a sexual relationship and this was why he did not feel that it was appropriate to use the prison disciplinary system to punish them in addition to separating them. More importantly, the suggestion that they were punished because they were engaged in such a relationship is without foundation. Mr Doughty was not moved because he was in a relationship with Mr Keeley, but because he and Mr Keeley were unable or unwilling to behave with the common decency with which offenders, staff and visitors are expected to conduct themselves. Moreover, in assessing the proportionality of the decision to separate Mr Keeley and Mr Doughty, it is relevant that they could still see each other during their working periods (34 hours per week) as they worked together in the Print Finishing Room, were able to have lunch together and to see each other in the course of other prison activities, such as attendance at the healthcare wing and during services at the Multi-Faith Centre.
41. For these reasons, the decisions to separate Mr Bright from Mr Beale and Mr Keeley from Mr Doughty were proportionate.

Procedure

42. The procedural requirements implicit in article 8 are not in doubt. They have been articulated by the ECtHR repeatedly. For example, in Tysiac v Poland (2007) 45 EHRR 42, the court said at para 115:

"….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."

43. Mr Southey submits that, when a decision is taken to separate two prisoners who are in a consensual sexual relationship, article 8 procedural fairness requires that the prisoners are given an adequate opportunity to make representations before the decision is taken (unless there are urgent operational reasons making this impracticable). He says that support for this approach is to be found in Secretary of State for the Home Department v SP [2004] EWCA Civ 1750 at paras 57-58 per Hooper LJ. The best time to check on the factual basis for a decision is before it is made; once a decision is made, it may be difficult to persuade the decision-maker to change his mind on the ground that the factual basis on which he acted was wrong.
44. Mr Southey contends that neither Mr Bright nor Mr Keeley had a meaningful opportunity to make representations before the decisions were taken.
45. What fairness requires always depends on the nature of the decision and the context and circumstances in which it is taken. In my view, Mr Southey places a weight on SP which it cannot bear in the context of this case. It is clear that the reason why in that case the court held that it was necessary for there to be an adequate opportunity to make representations in advance of the decision was because "any decision to remove to a segregation unit will be made based on a factual basis". Thus, it was necessary to be able to make representations in advance because of the difficulty faced by a person who "seeks to persuade the decision maker, after the decision has been made, that the factual basis he acted on is wrong" (para 58). But as Ms Gallafent points out, there was no factual dispute in relation to the decisions which are under challenge in the present case. It is not in dispute that Mr Beale was removed for his own safety. Nor are any of the facts relating to the decisions that were made in the case of Mr Keeley and Mr Doughty in dispute.
46. In any event, on the day before Mr Beale was moved from Red to Green Spur, Mr Bright asked the staff whether Mr Beale would be moved out (no doubt because he was aware of the risk to Mr Beale's personal safety were he to remain on Red Spur) and, if so, whether he would be allowed to say a proper "goodbye" before Mr Beale was moved. In other words, Mr Bright did have the opportunity to object to the move, but did not do so.
47. As regards Mr Keeley, the interview with Governor Huckle before the decision was taken to separate the two men was sufficient to satisfy the requirements of article 8. There is nothing in SP to support the proposition that, in every case where a separation of prisoners who are in a sexual relationship is under consideration, the affected prisoners must be given the opportunity to make representations to the prison authorities in advance of the decision being taken. I accept that there may be some circumstances in which fairness and article 8 procedural obligations will require that the affected prisoners be given an opportunity to make representations in advance of the decision. The most obvious example is where the basis for the decision is an allegation of misconduct which is or may be disputed. In the present case, the interview satisfied any requirement to check the factual basis for the decision to separate before it was made. There is no dispute as to any of the relevant facts.
48. Finally, applying the approach in Tysiac, the appellants were both involved in the respective decision-making processes "seen as a whole" when the complaint and appeal procedures are taken into account.

Conclusion

49. For the reasons that I have given (which in substance do not differ from those given by Carr J), I would reject the submissions of Mr Southey in relation to all three issues and refuse these applications for judicial review.

Lord Justice McFarlane:

50. I agree.

Lord Justice Fulford:

51. I also agree.