R v. Secretary of State for the Home Department, ex parte Glen Fielding

[1999] EWHC Admin 641
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In 1996, Glen Fielding was sentenced to four years imprisonment. Whilst incarcerated, Fielding, a man who had sex with men, requested condoms but was refused on the basis that it was against Prison Service policy to provide condoms to a prisoner who was not HIV-positive; there was no evidence that Fielding was HIV positive. The decision to prescribe condoms to an inmate was at the discretion of the Prison Medical Officer.

Fielding’s solicitors were informed about the policy in a number of letters from both the prison where Fielding was incarcerated and the Prison Service itself. These letters indicated that the Prison Service did not wish to be perceived, by prisoners or the wider community, as encouraging homosexual activity in prisons. As such, condoms were not made freely available to prisoners. The Prison Service, however, recognized that homosexual activity did in fact occur, which necessitated that prisons take steps to protect the health of inmates by encouraging prison doctors to provide condoms where there was a risk of HIV infection.

Fielding challenged the policy of the Prison Service as irrational. He argued that the refusal to provide condoms was an interference with his ability to express his sexuality by practicing safe sex and thereby a breach of his right to respect for his private life, contained in article 8(1) of the European Convention on Human Rights (the Convention).

The Court held that the Prison Service’s policy was lawful, but that the decision to deny condoms to Fielding was a misinterpretation of the policy.

The Court held that it was acceptable for prisons to control inmate access to condoms since they could be used for purposes other than safe sex. The Court found that the underlying rationale for the policy was that the Prison Service did not wish to be seen as encouraging homosexual activity in prison despite recognizing that such activity did occur. The Court noted that the Prison Service also recognized that prisons needed to prevent the spread of communicable diseases such as HIV/AIDS and ensure the health of prisoners and the population at large.  However, while the Court recommended that the Prison Service continue to control condom use, it held the policy should be reformulated so that prison doctors were better informed about the parameters of their discretion whether to prescribe condoms. The Court thus held that the policy itself was not irrational or unlawful.

In the case of Fielding, however, the Court held that the policy had been misinterpreted and that the prison had been wrong not to provide Fielding with condoms merely on the ground that he was not HIV-positive. The Court held that “whenever a prison medical officer is satisfied that a request for condoms is from a genuine homosexual who is intent on indulging in what would otherwise be unsafe sex, he should prescribe condoms.” The Court added that, in order to be satisfied of this, a prison could require investigation by the medical officer.

The Court did not reach its decision through examination of article 8(1) of the Convention, as Fielding was not yet entitled to rely directly on the Convention at the time the matter took place  in 1999.

“There is an attractive simplicity in Mr Daniel’s argument, namely that a homosexual who asks for condoms is asserting that he intends to engage in unsafe sex as to which the only prophylactic is a condom, which he should therefore be given without there being any question of clinical judgment or discretion. However, I consider that the Prison Service is entitled to take the view that it should not be seen to encourage homosexual activity in prison. That might be the message which would be given to the prison population, and the public at large, if condoms were available on demand. That is a matter of judgment for the Prison Service. Further, condoms have uses other than those for which they were designed; it seems to meto be reasonable for the Prison Service to consider it necessary for that reason that some control should be exercised. Given that the view that has been taken is not irrational, the question is whether or not the mechanism which has been chosen to control the supply of condoms is itself irrational.” Para. 14

“For these reasons, it seems to me that the policy is lawful. In the result, it seems to me that whenever a prison medical officer is satisfied that a request for condoms is from a genuine homosexual who is intent on indulging in what would otherwise be unsafe sex, he should prescribe condoms. I would like to think that so long as the Prison Service continues to take the view that there should be the control inherent in the policy, the policy itself might be reformulated so as to make clear what the limits of the prison medical officers discretion should be, so as to avoid the sort of misunderstanding or misinterpretation which is clearly evident in Doctor Rupasinghe’s memorandum. It follows that, although the particular decision to refuse to supply condoms about which the applicant complains was wrong, it was wrong because the policy was misinterpreted, not because the policy itself was unlawful. This application is refused.” Para. 15.