Although a judge ruled that the Home Office's policy on the distribution of condoms to prisoners was not "irrational", he decided that a particular decision not to supply them to 37-year-old Glen Fielding was wrong.

Mr Fielding went on hunger strike, and spent time at 27 different prisons during his eight year term.

Mr Justice Latham, said that the official policy had been "misinterpreted" when Mr Fielding was refused condoms.

Policy should be "reformulated"

The judge suggested it be "reformulated" to avoid future misunderstanding.

"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 intending to engage in penetrative of other dangerous sexual activity.

"Nor does it necessarily mean that he is in truth a consenting party to whatever activity is anticipated.

He added: "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."

Mr Fielding's lawyers claimed that prisoners, unknowingly infected during a prison term, could spread the infection on their release.

Medical officers have right to dispense condoms

The Home Secretary has already acknowledged the "duty of care" that the prison population deserve, and says that medical officers should be able, or even encouraged, to give out condoms where they think there is a risk of infection.

The key question was whether this meant only inmates already known to be infected with the HIV virus, or all homosexual prisoners regardless of their HIV status.

Mr Fielding argued that medical officers should be encouraged to hand out condoms to any serving prisoner who admits having sexual relationships with other inmates.

His counsel, Leo Daniel QC, argued during the high court hearing that prisoners had "a fundamental right" to indulge in safe homosexual activity.