Prison’s discretion to separate Civil Partners
The claimants were in each case, prisoners in the same prison. After they had annpunced an intention to become civil partners, they were moved so as to be separated. They compained that this infringed their Article 8 rights.
Held: The compaint failed. Such a separation was at the discretion of the prison governor. Thought there was no existing policy to cover such situations, the decision was not made in a vacuum and without constraint. It had to stay wihin the statutory purpose given. The authorities must not discriminate against prisoners in exercising the discretion, and retained a duty not to act unreasonably in the Wednesbury sense.
The first claimant’s partner had in fact been moved for his own safety and not because of his relationship with the claimant. In the other case the separation followed behaviour of the claimant and his partner which was sen to be indecent, insulting and offensive, contrary to the prison policy.
Lord Dyson MR noted that the Strasbourg jurisprudence adopts ‘a realistic and pragmatic approach’ and acknowledges that there are some contexts in which it is impracticable to define with precision how a discretionary power will or may be exercised.
Lord Dyson MR, McFarlane, Fulford LJJ
[2014] EWCA Civ 1628, [2015] 1 WLR 723, [2014] WLR(D) 549
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Prisons, Human Rights
Leading Case
Updated: 01 November 2021; Ref: scu.539979