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.Reuse content