Judge allows condoms for gay convicts

ALL HOMOSEXUAL prisoners should be issued with free condoms while in prison if they want them, a High Court judge ruled yesterday.

Mr Justice Latham said that the Home Office policy on the distribution of condoms had been "misinterpreted" when one gay prisoner was refused them. The judge suggested that the policy should be "reformulated" to avoid future misunderstandings, with condoms available to those "intent on indulging in what would otherwise be unsafe sex".

The ruling marks a significant legal victory for Glen Fielding, 37, a former prisoner now living in London. Mr Fielding has, since his release, continued a long campaign to secure access to condoms for gay inmates to protect them against the Aids virus and other infections. His counsel, Leo Daniel, argued during the High Court hearing in London that prisoners had "a fundamental right to indulge in safe homosexual activity".

Yesterday's legal challenge followed concern over two particular cases of homosexual rape in jails and the first recorded incident of sexual transmission of HIV infection from one inmate to another, in 1994.

Mr Fielding spent eight years in prison for various offences and his requests for condoms had been refused at Leicester Prison and Littlehey Prison, Cambridgeshire. He had also been stopped from receiving condoms by mail order on the basis that they were "unauthorised". Before his release, he had been moved to the privately run Blakenhurst prison at Redditch, Worcestershire, where he was supplied with condoms.

The judge said the particular decision to refuse to supply condoms to him was wrong because the policy had been misinterpreted.

The judge said: "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."

However, he rejected allegations that the current Home Office policy on the distribution of condoms was "irrational".

Mr Justice Latham said: "The mere fact that a person asserts that he wants a condom does not mean that he is a genuine homosexual, nor does it mean that he is necessarily intending to engage in penetrative or other dangerous sexual activity, nor does it necessarily mean that he is, in truth, a consenting party to whatever activity is anticipated."

The judge said the basis for issuing condoms to prisoners was highlighted in a "Dear Doctor" letter sent to all prisons in August 1995, which pointed out that doctors had a duty of care to prescribe as they saw fit to reduce the risk of HIV infection through unprotected sex. Home Office legal advice was that consenting sex between adult prisoners in a prison cell was not automatically unlawful, and a cell was capable of being deemed "a private place".

But the judge ruled that the policy could not be said to be unlawful. The Prison Service was 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," said the judge. But he said the real issue was one of health, and gay prisoners intent on unsafe sex should be offered the protection of condoms.

In those circumstances it was not irrational to leave the decision to the prison medical officer, who could judge whether a request for condoms was for genuine reasons of health.

He urged that "the policy itself might be reformulated so as to make it clear what the limits of the prison medical officers' discretion should be", so avoiding any future misunderstanding or misinterpretation.

Suggested Topics
Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Personal Tax Senior

£28000 - £37000 per annum: Recruitment Genius: This is an opportunity to join ...

Recruitment Genius: Customer and Markets Development Executive

£22000 - £29000 per annum: Recruitment Genius: This company's mission is to ma...

Recruitment Genius: Guest Services Assistant

£13832 per annum: Recruitment Genius: This 5 star leisure destination on the w...

Recruitment Genius: Sales Account Manager

£20000 - £32000 per annum: Recruitment Genius: A Sales Account Manager is requ...

Day In a Page

A nap a day could save your life - and here's why

A nap a day could save your life

A midday nap is 'associated with reduced blood pressure'
If men are so obsessed by sex, why do they clam up when confronted with the grisly realities?

If men are so obsessed by sex...

...why do they clam up when confronted with the grisly realities?
The comedy titans of Avalon on their attempt to save BBC3

Jon Thoday and Richard Allen-Turner

The comedy titans of Avalon on their attempt to save BBC3
The bathing machine is back... but with a difference

Rolling in the deep

The bathing machine is back but with a difference
Part-privatised tests, new age limits, driverless cars: Tories plot motoring revolution

Conservatives plot a motoring revolution

Draft report reveals biggest reform to regulations since driving test introduced in 1935
The Silk Roads that trace civilisation: Long before the West rose to power, Asian pathways were connecting peoples and places

The Silk Roads that trace civilisation

Long before the West rose to power, Asian pathways were connecting peoples and places
House of Lords: Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled

The honours that shame Britain

Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled
When it comes to street harassment, we need to talk about race

'When it comes to street harassment, we need to talk about race'

Why are black men living the stereotypes and why are we letting them get away with it?
International Tap Festival: Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic

International Tap Festival comes to the UK

Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic
War with Isis: Is Turkey's buffer zone in Syria a matter of self-defence – or just anti-Kurd?

Turkey's buffer zone in Syria: self-defence – or just anti-Kurd?

Ankara accused of exacerbating racial division by allowing Turkmen minority to cross the border
Doris Lessing: Acclaimed novelist was kept under MI5 observation for 18 years, newly released papers show

'A subversive brothel keeper and Communist'

Acclaimed novelist Doris Lessing was kept under MI5 observation for 18 years, newly released papers show
Big Blue Live: BBC's Springwatch offshoot swaps back gardens for California's Monterey Bay

BBC heads to the Californian coast

The Big Blue Live crew is preparing for the first of three episodes on Sunday night, filming from boats, planes and an aquarium studio
Austin Bidwell: The Victorian fraudster who shook the Bank of England with the most daring forgery the world had known

Victorian fraudster who shook the Bank of England

Conman Austin Bidwell. was a heartless cad who carried out the most daring forgery the world had known
Car hacking scandal: Security designed to stop thieves hot-wiring almost every modern motor has been cracked

Car hacking scandal

Security designed to stop thieves hot-wiring almost every modern motor has been cracked
10 best placemats

Take your seat: 10 best placemats

Protect your table and dine in style with a bold new accessory