HOMOSEXUAL prisoners ''intent on indulging in what would otherwise be unsafe sex'' should be prescribed condoms in jail, a judge at the High Court in London ruled yesterday. But there are no plans to introduce the same ruling in Scotland, where it emerged the legal situation was unclear.

Mr Justice Latham rejected allegations that the current Home Office policy on the distribution of condoms was ''irrational''. He said the policy had been misinterpreted, when one gay prisoner was refused access and suggested that it should now be reformulated to avoid future misunderstandings.

The position in Scotland, where homosexuality is described as ''rife'' in prisons, has yet to be clarified.

A spokeswoman for the Scottish Prisons Service said there were no plans to introduce condoms to homosexual prisoners because ''homosexuality in a public place is illegal, and it is certainly illegal in a prison''.

But Home Office legal advice was that consenting sex between adult prisoners in a cell was not automatically unlawful, and a cell was capable of being deemed ''a private place''.

The SPS spokeswoman said yesterday: ''We don't issue condoms for prisoners for any reason, but before they go on home leave or on release they are offered condoms. That is the situation at the moment and we will look at today's ruling in London with interest.''

She added that any change in the position in Scotland would be for the First Minister to decide, as it was a policy which would need to be debated by the Scottish Parliament.

A lawyer for Glasgow-based solicitors Levy & McRae, who represent the Scottish Prison Service, said: ''Homosexuality is illegal if it is in a public place. The problem would be the definition of a public place.

''Prison, even the cells, are a public place because you can't stop anyone walking in.''

She added that it was possible there had never been a definition drawn up in this circumstance if it had not been tested in a Scottish court.

A spokeswoman for the Scottish Voluntary HIV and Aids Forum said: ''This is a public health issue as well as a human rights issue.''

She added that the only way for the interpretation of what constitutes a private place to be tested is to take a similar stand in the Scottish courts.

In London, the judge rejected an application for a declaration that the policy was irrational from Mr Glen Fielding, a former prisoner who has fought a long campaign for access to condoms to protect against the Aids virus and other infections.

But yesterday's ruling, in effect, marked a significant legal victory for 37-year-old Mr Fielding, who spent more than eight years in prison for various offences and on his release continued a long-running campaign for access to condoms. His battle included a hunger strike and serving time in as many as 27 different prisons.

Mr Justice Latham said the particular decision to refuse to supply condoms to him was wrong because the policy had been misinterpreted.

The basis for issuing condoms to prisoners was highlighted in a letter sent to all prisons in August 1995, which pointed out that doctors had a duty of care to prescribe, as they saw fit, in order to reduce the risk of HIV infection through unprotected sex.

Mr Fielding had based his claim for a declaration that the Home Office policy was irrational on the principle that condoms should be available ''on demand'' to inmates.

However, 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.

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.

Although the decision to refuse Mr Fielding condoms was wrong, ''it was wrong because the policy was misinterpreted, not because the policy itself was unlawful'', said the judge.

The Prison Service said the judgment confirmed current policy within jails which allow condoms to be issued to gay prisoners when there is a genuine health need, for example with a sexually-active HIV-positive inmate.

New guidelines for prison medical officers, in the process of being drawn up, would incorporate the High Court ruling and clarify current rules, officials said.