England and Wales Court of Appeal (Civil Division) Decisions

SECRETARY OF STATE FOR HOME DEPARTMENT Ex parte MELLOR, R v. [2001] EWCA Civ 472 (4th April, 2001)

Case No: C/2000/2869

Neutral Citation Number: [2001] EWCA Civ 472

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(Mr Justice Forbes)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday, 4^th April 2001

LORD PHILLIPS MR :

Introduction

1. The appellant is serving a life sentence for murder. He is married. He and his wife wish to found a family. To this end he applied to the Secretary of State for the Home Department for permission to have access to facilities for artificial insemination. The Secretary of State refused his application. He applied to Forbes J. for judicial review of the Home Secretary's decision. The Judge dismissed his application by a judgment delivered on 31 July 2000. The appellant now appeals against that judgment.

2. In the first part of his judgment Forbes J. sets out the background facts and the legal framework. They are not contentious and I shall, with minor alterations, incorporate them in this judgment.

The Background Facts

3. Mr Mellor was born on 4 April 1971 and is now aged 29. In February 1995 he was convicted of murder and sentenced to life imprisonment. The tariff element of Mr Mellor's life sentence (Mr Mellor's "tariff") is due to expire in 2006, by which time he will be 35 years old.

4. In January 1997, whilst Mr Mellor was a prisoner at HMP Gartree, he met and formed a relationship with Tracey McColl, who was a member of the prison staff there at the time. On 17 March 1997, Miss McColl resigned from the Prison Service. On 21 April 1997 Mr Mellor was transferred to HMP Winchester, moving from there to HMP Long Lartin on 14 May 1997 and from there to HMP Nottingham on 11 October 1999. HMP Nottingham is a Category B local prison, with a wing for prisoners serving life sentences. Mr Mellor's understanding is that his next progressive move will be to a Category C prison.

5. On 22 July 1997, Mr Mellor and Miss McColl were married in prison. Mrs Mellor is now aged 25 and will be 31 years old when Mr Mellor's tariff expires in February 2006. In 2004, when it is possible that Mr Mellor may be granted temporary release (as to which, see paragraphs 7 and 8 below), Mrs Mellor will be 28/29 years old.

6. The first formal review of Mr Mellor's case by the Parole Board will take place in late 2002, 3½ years prior to the expiry of his tariff, provided he has spent over 12 months as a Category C prisoner. Otherwise, his case will first be reviewed by the Parole Board in February 2003, 3 years prior to expiry of his tariff. Mr Mellor has been advised that once he reaches a Category C prison as a life prisoner, he can expect to spend 2 to 3 years in Category C conditions, if all goes well. This would then be followed by 2 years in Category D conditions (ie open conditions), followed by release on licence.

7. It will be open to the Parole Board, when reviewing Mr Mellor's case, to recommend that he should be transferred to open conditions. Such a recommendation would be subject to the approval of the Secretary of State and would only be made if the Parole Board were satisfied that Mr Mellor had made sufficient progress in addressing his offending behaviour to minimise the risk of re-offending, that he would benefit from open conditions and that he could be trusted not to abscond or to commit further offences whilst inside or outside prison.

8. After 6 months in open conditions, Mr Mellor would be eligible to apply for release on temporary "facility licence". After 9 months in open conditions Mr Mellor would become eligible for temporary release on a "resettlement licence": see paragraphs 6.1 to 6.11 of the Instruction to Governors dated 7 April 1995, Issue number IG36/1995.

9. Mr Mellor's prospects for temporary release, prior to expiry of his tariff, are succinctly stated in paragraph 4 of the note dated 7 July 2000, agreed between Mr Pannick QC on behalf of Mr Mellor and Ms Dinah Rose on behalf of the Secretary of State, in the following terms:

"The time by which Mr Mellor will actually be in a position to seek, or be granted, temporary release thus depends upon the progress he makes in custody, and the individual assessment of the risk he presents. Having regard to the time needed to complete the necessary processes, he is most unlikely to be in that position prior to mid-2004 (in the respondent's view) or late 2004 (in the applicant's view). Of course, it might take him considerably longer to progress to open conditions."

10. On 13 August 1997, Mr Mellor asked for permission to be allowed to inseminate his wife artificially. Mr Mellor submitted his request in writing and addressed it to the governor of HMP Long Lartin. So far as material, Mr Mellor's request was in the following terms. Spelling and punctuation have been corrected:

"Dear Governor,

I would be very grateful if you would allow me my right to found a family by means of artificial insemination. Article 2 of the European convention of human Rights guarantees the right to found a family by means of artificial insemination. I am legally married and my strong reason is that there is no guarantees that I will ever be released, also my wife could be too old to conceive or it could be life-threatening if she were to conceive upon my actual release, if I am going to be released? It is also my wife's right to found a family. All that is needed is to have your consent for me to be escorted to a hospital at my expense, so that I can give a sample of semen, and your permission to give a sample of semen to a hospital fertility clinic."

11. It is plain from Mrs Mellor's affidavit dated 5 April 2000 that she fully supports her husband's request. She is anxious to have a child. She clearly and genuinely believes that she is in a position to look after and bring up a child properly and successfully whilst Mr Mellor is still in prison. Mrs Mellor currently lives with Mr Mellor's mother in Crewe. The property is a two bedroomed house which is owned by Mr Mellor's mother. Paragraphs 9 to 13 of Mrs Mellor's affidavit are as follows:

"9. I currently work part time as a community care assistant for Cheshire County Council.

10. Gavin's mother also works part time and as it happens our work tends not to overlap so there is someone always at the house. Certainly, if I were to have a child there would be no problem arranging for full-time care to be provided by myself and Gavin's mother jointly.

11. We want a child because we are married and we feel that this would complete the family. We both appreciate that Gavin is going to be in prison for a very long time - he has a 12 year tariff (of) which he has served about 6 years and we both appreciate that he may well not be released when his tariff expires.

12. There are no genetic problems in my family or as far as I am aware in Gavin's family which would cause us any concern about having a child.

13. I have now been married to Gavin for 2½ years. We are still very much in love and want nothing more than to have a child together."

12. On 23 January 1998, Mrs Mellor was seen and examined by Dr S J Bevan at the Health Centre, 45 Delamere Street, Crewe, in order to determine whether there was any medical impediment to her conceiving a child by artificial insemination. On the same date, Dr Bevan wrote the following report, confirming that there were no medical reasons to prevent Mrs Mellor going ahead with artificial insemination:

"I have been contacted by Tracey (Mellor) who says she is requesting AIH treatment as her husband is in prison.

Today I have seen and examined Tracey and found that she is medically fit to receive artificial insemination treatment. There is nothing in her medical notes or history that suggests that she may be unfit for this.

On examination there was no abnormality and I can see no reason at all why she should not be able to conceive in a normal manner were her husband not in prison."

13. Dr Bevan's report, together with other relevant information, was sent to HM Prison Service Headquarters on 15 April 1998 and formed part of the material considered by the Secretary of State in reaching his decision with regard to Mr Mellor's request.

14. In letter dated 12 April 2000, Mr C R Kingsland MD FRCOG, Consultant Obstetrician and Gynaecologist at the Liverpool Women's Hospital, expressed the following, unchallenged, opinions as to the medical propriety of the Mellors' request for artificial insemination and as to Mrs Mellor's ability to conceive a child in her 30s once Mr Mellor is released from prison (on the assumption that he is released reasonably soon after the expiry of his tariff, if not before on temporary release- see above):

"This is a rather unusual request but it does not fall within the Human Fertilisation and Embryology Act of 1990, and therefore from a legal point of view there is no impediment to us performing this therapy. I would refer such a case to the Hospital's independent Ethics Committee for their opinion as to whether we should proceed. There is a question about this lady's request being based on her decline in fertility with advancing age. Unlike the male whose fertility tends to decline much more slowly, a female's fertility declines slowly in her fourth decade, and more rapidly over the age of 35. Over the age of 40, female fertility drops quite significantly and most women have reached sterility by the late fifth decade.

...

As far as this particular woman is concerned, I believe she is in her mid 20's, and I would therefore suggest, for the next 7 or 8 years at least her fertility should not decline so much so that she would require medical intervention. It is my opinion therefore that advancing age in this particular female's case is not a consideration when considering her fertility.

...

In summary, this is indeed an unusual request and any treatment would be subject to Ethics Committee approval. In my opinion, the female's age in this case is not a significant factor as to why they should have treatment sooner rather than later, but she should expect a decline in her natural fertility in the fourth decade..."

15. By letter dated 3 November 1998, the Secretary of State refused Mr Mellor's request, as follows:

"The Secretary of State has carefully considered your request dated 13 August 1997 that you and your wife should be allowed artificial insemination facilities. The Secretary of State is not prepared to grant this.

The Secretary of State notes that you and your wife are anxious to start a family. However he also notes that there is no medical need for artificial insemination facilities to be made available and that the facilities you have requested are only required as a result of your imprisonment. Further, although the length of your term of imprisonment is not so distant that you would be unable, eventually, to assume the responsibilities of a parent, there must be a concern about the stability of your relationship on release given that it did not exist before your imprisonment and has not been tested under normal circumstances.

The Secretary of State is not satisfied that the procedure you request is necessary and justified in the circumstances of your case; nor is your situation sufficient to merit granting you the benefit of this procedure where the general rules would not enable conception by other means."

16. As appears from the letter of Lord Williams of Mostyn QC (who was then the relevant Home Office Minister) dated 9 November 1998 and written to Mrs Mellor's Member of Parliament, Mrs Gwyneth Dunwoody, MP, the Secretary of State has a long standing policy with regard to requests by prisoners for artificial insemination, as follows:

"The long standing policy of the Prison Service on the grant of artificial insemination (AI) for prisoners and their partners is that these facilities will normally be refused unless there are exceptional circumstances to justify otherwise.

The Prison Service does not encourage prisoners or their families to make requests for AI facilities. However, it is bound to consider any request made on its merits to avoid the possibility of judicial review or a challenge in the European Court of Human Rights. The assessment of such applications is inevitably highly subjective and it is very difficult to lay down in advance a list of objective, determinate criteria which must be satisfied. In recognition of this, the Prison Service developed a set of considerations as opposed to rigid criteria, which should be looked at amongst other factors when considering any application from prisoners for these procedures. To avoid the possibility of AI being used as an alternative to conjugal visits, which are not permitted, the procedure might usually be considered appropriate only where there is clear evidence that it is medically necessary to do so for conception to occur. This by itself would not be a deciding factor but would be relevant if there was a particular medical reason why conception would only be possible during a limited period."

17. In his affidavit dated 1 November 1999, sworn in these proceedings on behalf of the Secretary of State, the Head of the Prisoner Administration Group of the Prison Service, Mr Nicolas Sanderson, referred to the Secretary of State's policy and explained how its application to the facts and circumstances of this case had resulted in the Secretary of State's refusal of 3 November 1998, as follows:

"3. It is the policy of the Respondent that the grant of facilities for AI to prisoners and their partners is made only in exceptional circumstances. Each case is considered on its own facts, but the Prison Service has developed a set of general considerations which are looked at, along with other relevant factors, when applications are received, but which are not treated as rigid criteria. They allow for the consideration of other exceptional circumstances which may be put forward. They apply equally to male and female prisoners. Those general considerations are as follows:-

(a) Whether the provision of AI facilities is the only means by which conception is likely to occur;

(b) Whether the prisoner's expected date of release is neither so near that delay would not be excessive nor so distant that he or she would be unable to assume the responsibilities of a parent;

(c) Whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI;

(d) Whether the couple were in a well- established and stable relationship before imprisonment which is likely to subsist after the prisoner's release;

(e) Whether there is evidence to suggest that the couple's domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might be expected to be without a father or mother;

(f) Whether, having regard to the prisoner's history and antecedents and other relevant factors, there is evidence to suggest that it would not be in the public interest to provide AI facilities in this particular case....

5. The cautious approach which is taken to requests for AI made by prisoners has been adopted for the following reasons:

(a) It is an explicit consequence of imprisonment that prisoners should not have the opportunity to beget children whilst serving their sentences, until they come to a stage where they are allowed to take leave on temporary licence;

(b) Serious and justified public concern would be likely if prisoners continued to have the opportunity to conceive children while serving sentences;

(c) That whilst many children are brought up successfully by single parents, the evidence suggests that children do better when they can stay in close contact with both parents. The creation of what would inevitably be one parent families because one partner was serving a sentence of imprisonment seems likely to be disadvantageous to society as a whole, as well as not being in the interests of the welfare of the child.

6. It is thus the aim of the policy to limit the grant of AI facilities to those who can reasonably be expected to be released into a stable family setting, and to play a parental role in bringing up any child conceived by AI. Account must also be taken of public interest considerations. It is also the intention of the policy that AI should only be granted where it is necessary to facilitate conception (for example, in circumstances where for medical reasons the couple could not conceive naturally or where the woman's medical condition indicates that there is only a small window of opportunity left to the couple in which to conceive, so that conception would be unlikely following release) in order to avoid AI being used simply to circumvent the normal consequences of imprisonment. Any prisoner seeking AI facilities is expected to finance the cost of treatment.

...

12. The Applicant's request for AI facilities was refused taking into account the general criteria, and for the following reasons:

a) there was no medical need for AI in order for the Applicant and his wife to conceive;

b) there was some concern about the stability of their relationship, given that it did not exist prior to the Applicant's imprisonment, and had not been tested under normal circumstances.

13. In reaching that decision, the Respondent fully took into account the representations made by the Applicant and his wife, but reached the view that, on balance, and considering all relevant factors, including the general considerations set out in the Prison Service policy, the request ought not to be granted.

14. The decision taken in the Applicant's case is not a "once and for all decision". The applicant may make further applications for AI in future. If the circumstances of the Applicant and his wife were to change (for example, if there were to be good reason to believe that conception by normal means would not be possible on the Applicant's release) that factor would be taken into account by the Respondent in considering whether a different decision was appropriate."

The Legal Framework

18. The Secretary of State is empowered to make rules for the management of prisons by Section 47 of the Prison Act, 1952, which, so far as material, provides as follows:

"47 Rules for the Management of Prisons

The Secretary of State may make rules for the regulation and management of prisons.... And for the classification, treatment, employment, discipline and control of persons required to be detained therein..."

The current rules are The Prison Rules 1999, SI 1999 No 728. The only rule which appears to have any immediate relevance to these proceedings is rule 4 of the Prison Rules 1999. Rule 4 is in identical terms to its predecessor, which was rule 31 of the Prison Rules 1964 (as amended), and is in the following terms:

"Outside Contacts

(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation."

19. Subject to the possibility of an earlier temporary release (as to which, see paragraphs 8 to 9 above), it is accepted that, as a mandatory life prisoner, Mr Mellor will only be released on life licence (a) after his tariff of 12 years (set by the Secretary of State) has expired and (b) if the Parole Board recommends that he is safe to be released on licence and the Secretary of State decides, after consultation with the Lord Chief Justice, together with the trial Judge, if available, that he should be so released: see Section 29 of the Crime (Sentences) Act 1997.

20. The following two Articles of the European Convention on Human Rights ("the Convention") are of particular relevance.

"Article 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

"Article 12

Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."

The Convention and domestic law

21. The Secretary of State made his decision before the Convention was incorporated into English domestic law. It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant's case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either.

The Strasbourg jurisprudence

22. The Strasbourg jurisprudence to which we have been referred in relation to this issue is relatively sparse and consists of five decisions of the Commission. I propose to examine these in chronological order.

23. X v United Kingdom (1975) 2 DR 105 was a decision on admissibility of the application. The applicant was a long-term prisoner. He complained of `degrading punishment' within the meaning of Article 3 of the Convention and prevention of `founding further family' contrary to Article 12. The primary basis of both complaints was the deprivation of his conjugal rights as a consequence of his imprisonment.

24. The Commission considered that no issue arose under Article 3, but went on to examine the question of whether the interference with the applicant's right to respect for his family life could be justified under Article 8(2). The Commission applied the reasoning of a decision reached in an earlier case in 1970 in which it had concluded that:

"a system prohibiting conjugal visits to persons detained in prison was covered by the provisions of para. (2) of Art. 8 allowing interference by the authorities in a person's right to family life on the ground that it is necessary in the interests of public safety."

25. The Commission then considered the complaint that the applicant's right under Article 12 to found a family had been violated. It concluded:

"Although the right to found a family is an absolute right in the sense that no restrictions similar to those in para. (2) of Art. 8 of the Convention are expressly provided for, it does not mean that a person must at all times be given the actual possibility to procreate his descendants. It would seem that the situation of a lawfully convicted person detained in prison in which the applicant finds himself falls under his own responsibility, and that his right to found a family has not otherwise been infringed. This complaint therefore, is also manifestly ill-founded."

26. These observations support the following propositions:

i) Lawful imprisonment can constitute a justifiable interference with the right to respect for family life by virtue of Article 8(2).

ii) Article 12 does not confer on a man an absolute right at all times to be enabled to procreate.

iii) A lawfully convicted prisoner is responsible for his own situation and cannot complain on that account that his right to found a family has been infringed.

27. X & Y v Switzerland (1978) 13 DR 105 was another decision on admissibility of the application. A married couple were detained in the same prison, but in separate confinement, for a period of about two months. They complained that they had been deprived of sexual relations during this period and that Articles 8 and 12 of the Convention had been violated. As to the first complaint, the Commission found that the interference with the right to respect for family life was justified under Article 8(2) for the following reasons:

"The Commission notes that it is generally considered to be justified for the prevention of disorder in prison not to allow sexual relations of married couples in prison. The Commission accepts that in fact the security and good order in prison would be seriously endangered if all married prisoners were allowed to keep up their conjugal life in the prison. In this case the respect for privacy would require that the prison authorities renounce their right of constant supervision. Uncontrolled visits or contacts could, inter alia, facilitate the exchange of secret messages, the smuggling in of goods such as drugs or even of arms. Especially with regard to prisoners on remand, who may be detained if there is danger that they might abscond and/or destroy evidence if they were released, the purpose of their detention requires a strict supervision of their contacts with visitors or co-accused."

28. As to the alleged violation of Art. 12, the Commission held:

"The applicants are married and have thus already founded a family. They consequently enjoy the right to respect of their family life as guaranteed by Article 8 of the Convention. An interference with family life which is justified under Article 8(2) cannot at the same time constitute a violation of Article 12."

29. The last sentence is important. Article 12 qualifies the right to marry and found a family by the phrase "according to the national laws governing the exercise of this right". It might have been thought that this qualification related to national laws dealing specifically with the rights in question, such as those governing the minimum age at which one can marry and the prohibited degrees of consanguinity. The sentence in question suggests, however, that the criteria justifying interference with the right to respect for family life under Article 8(2) apply also to the Article 12 rights.

30. There follow two almost identical opinions of the Commission in cases which were considered together: Hamer v United Kingdom (1979) 4 E.H.R.R. 139 and Draper v United Kingdom (1980) 24 DR 72.

31. In each case the applicants were a man and woman who wished to marry. The man was serving a sentence of imprisonment. In accordance with the practice then current, the Secretary of State refused to permit arrangements to be made that would enable the marriage to take place.

32. The Commission referred to its previous decisions to the effect that imprisonment did not unlawfully infringe the right conferred by Article 12 to found a family. They drew a distinction, however, between that right and the right to marry. The following passages are taken from Hamer:

"This is, essentially, a right to form a legal relationship, to acquire a status. Its exercise by prisoners involves no general threat to prison security or good order comparable to those referred to by the Commission in the above-mentioned decisions. In particular a marriage ceremony can take place under the supervision of the prison authorities.

...Personal liberty is not a necessary pre-condition to the exercise of the right to marry. The practice of States in allowing prisoners to marry, either within prison or on temporary release under escort, shows that no specially onerous or complex arrangements are necessary. The exercise of the right, particularly within a prison, does not, as the Commission has already pointed out, involve the prisoner escaping from the supervision and control of the prison authorities.

...In considering whether the imposition of such a delay breached the applicant's right to marry, the Commission does not regard it as relevant that he could not have cohabited with his wife or consummated his marriage whilst serving his sentence. The essence of the right to marry, in the Commission's opinion, is the formation of a legally binding association between a man and a woman. It is for them to decide whether or not they wish to enter such an association in circumstances where they cannot cohabit."

33. The Commission recognised that some positive action was necessary by the prison authorities in order to enable a marriage to take place, but held that to refuse such facilities could amount to an interference with a Convention right that was not justifiable. Examples were given which included the requirement to grant temporary release from detention to attend a family funeral.

34. Having held that the right to marry was not incompatible with a prisoner's deprivation of liberty, the Commission considered the extent to which it was legitimate to delay the exercise of that right in the case of a prisoner. They held that any restriction or regulation of the right to marry should not be such as to injure its substance. Any substantial period of delay in permitting the exercise of the right should be seen as an injury to the substance of the right to marry. On the facts of the case the Commission held that delaying the right for 15 months to the earliest parole date for the prisoner was not justifiable.

35. The Commission also held that no general consideration of public interest arising from the fact of imprisonment itself could justify interference with the right of marriage. This finding addressed an argument of the United Kingdom which was more fully, and less categorically, dealt with in Draper at paragraph 62 where the Commission rejected the submission that a restriction on the right of life sentence prisoners was justified because, at least in some categories of offence, the public would be outraged if prisoners were allowed to marry.

36. The final decision of the Commission to which it is necessary to refer was a decision on admissibility. In E.L.H and P.B.H. v. United Kingdom (1997) 91A DR61 the applicants were a married couple who were Roman Catholics. The wife was 33 years old and the husband 37. The husband was serving a sentence of imprisonment of 20 years. The wife applied to the Home Secretary for permission for conjugal visits. She wished to have a child by her husband, but in order to be able to conceive required major surgery to her fallopian tubes. This would increase her prospect of conceiving, but only for a limited period. Her wish was to have the surgery and to follow this with conjugal visits. Her application was refused by the prison governor on the ground that there was no statutory provision for such visits. The Commission held that the application was not admissible for reasons that appear from the following passages from the report:

"The Commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating `conjugal visits'.

However, the Commission recalls its case-law to the effect that, although the refusal of such visits constitutes an interference with the right to respect for one's family life under Article 8 of the Convention, for the present time it must be regarded as justified for the prevention of disorder or crime under the second paragraph of that provision. Moreover, according to the same case-law, an interference with family life which is justified under Article 8 para. 2 of the Convention cannot at the same time constitute a violation of Article 12.

The Commission considers that the same conclusions should be reached under Articles 8 and 12 of the Convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners.

The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the Convention is disclosed.

The applicants complain of discrimination in the enjoyment of their rights under Articles 3, 8 and 12 of the Convention, contrary to Article 14 thereof.

Insofar as the applicants can be deemed to complain that they have less possibilities to procreate than persons who are not detained, the Commission considers that the difference in treatment in question is the direct result of a lawfully imposed prison sentence and, as a result, has a reasonable and objective justification. Moreover, it has not been shown that there exists no reasonable proportionality between the means employed and the aim sought to be realised, since the applicants have the possibility to apply for artificial insemination facilities.

It follows that no appearance of a violation of Article 14 of the Convention taken in conjunction with Articles 3, 8 and 12 is disclosed."

37. The Commission rejected the submission that the applicants should receive special consideration because, as Roman Catholics, they did not feel able to resort to artificial insemination.

38. By this decision the Commission ruled that, because artificial insemination was an option available to the applicants, they were not in a position to advance a case that their Article 12 right to found a family had been violated. The Commission did not decide, because they did not have to, whether if artificial insemination facilities had not been available to the applicants, there would have been an unlawful interference with that right. It is implicit, however, that they at least contemplated that, in what they described as the "exceptional circumstances" of the case, refusal to permit either natural or artificial insemination in conjunction with the surgical operation on the wife might have constituted an infringement of Article 12.

39. I can summarise the conclusions that I derive from these five decisions as follows:

i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights.

ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12.

iii) This restriction is ordinarily justifiable under the provisions of Article 8(2).

iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right.

v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.

The issue on human rights

40. Mr Pannick Q.C. makes the following submissions on behalf of the appellant. The reason why imprisonment is a justifiable restriction on the exercise of conjugal rights is pragmatic. Permitting the exercise of conjugal rights in prison, together with the privacy that this would involve, would endanger the security of the prison - see X & Y v Switzerland. Thus imprisonment and the exercise of conjugal rights are incompatible in practice. The same is not true of the provision by a prisoner of a sample of semen. This could be taken from the prisoner within the prison without undue dislocation of the prison regime. Alternatively it could be provided by escorting the prisoner to a clinic, which would involve no greater administrative burden than that involved when a prisoner is taken to a funeral of a close relative, or to a hospital for treatment. It follows that artificial insemination provides a method by which a prisoner can exercise his right to found a family which is compatible with his imprisonment. That is a fundamental right which the prisoner ought to be permitted to exercise in the absence of a cogent reason for interfering with it.

41. Miss Rose for the Secretary of State challenges this analysis. She submits that the purpose, or at least a purpose, of imprisonment is to punish the criminal by depriving him of certain rights and pleasures which he can only enjoy when at liberty. Those rights and pleasures include the enjoyment of family life, the exercise of conjugal rights and the right to found a family. Imprisonment is inconsistent with those rights not merely as a matter of practical incompatibility but because part of the object of the exercise is that it should preclude the exercise of those rights. A prisoner cannot procreate by the medium of artificial insemination without the positive assistance of the prison authorities. In the absence of exceptional circumstances they commit no infringement of Article 12 if they decline to provide that assistance.

42. I consider that the jurisprudence considered above, and in particular the case of E.L.H. and P.B.H. v. United Kingdom, supports Miss Rose's submission. The Commission noted with sympathy the facilitating of conjugal visits in several European countries, but concluded that for the present time the refusal of such visits should continue to be regarded as justified for the prevention of disorder or crime. Mr Pannick submitted that those words were referring simply to the disorder or crime that would be liable to occur within prisons if conjugal visits were allowed. It seems to me that the reference by the Commission with sympathy to the countries where such visits were allowed demonstrates that they appreciated that such visits were not physically incompatible with the effective operation of a prison service. In nonetheless continuing to accept that there was no obligation to facilitate such visits, the Commission recognised that the majority of signatories to the Convention maintained a policy that those who had been sentenced to imprisonment should not be permitted to exercise these rights. In so doing they were adhering to what they correctly understood to be the existing jurisprudence.

43. It does not, of course, necessarily follow that, because it is justifiable to deprive a prisoner of the exercise of conjugal rights, he should not be permitted to inseminate his wife artificially. Equally, however, it does not follow that a prisoner who is justifiably deprived of the exercise of his conjugal rights should be provided with the facilities to enable him to do this. When the Convention was agreed half a century ago, the right to found a family would have been equated with conjugal rights. The right to respect for family life and the right to marry and found a family are closely interrelated. It is not obvious that the signatories to the Convention would have agreed that a man who had, by imprisonment, been justifiably deprived of the enjoyment of family life and the exercise of conjugal rights, should be entitled to inseminate his wife artificially in order to produce a child in whose development and support he could play no part.

44. Miss Rose submitted that if the appellant was to succeed, he had to demonstrate that the right to found a family extended to the right to do so by artificial insemination when justifiably excluded from the enjoyment of family life and conjugal rights. I consider that she was correct, and that she was also correct to submit that the appellant had failed to do so. The fact that there is no jurisprudence bearing directly on the issue suggests that it has not to date been considered that fundamental human rights include the right of a prisoner to inseminate his wife by artificial means. I have concluded that they do not.

45. It does not follow from this that it will always be justifiable to prevent a prisoner from inseminating his wife artificially, or indeed naturally. The interference with fundamental human rights which is permitted by Article 8(2) involves an exercise in proportionality. Exceptional circumstances may require the normal consequences of imprisonment to yield, because the effect of its interference with a particular human right is disproportionate. That is implicit in the reasoning of the European Court in E.L.H. and P.B.H. v. United Kingdom.

Domestic Authorities

46. The relevant principle laid down by the domestic case law was common ground, though its application was not. It can be derived from two decisions of the House of Lords. In Raymond v. Honey [1983] AC 1 a prison governor had intercepted a letter written by a prisoner to his solicitor in connection with legal proceedings. The House of Lords held that this action constituted a contempt of court. Lord Wilberforce held at p.10 that:

"...under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication:"

47. Applying this principle, he held at p.12:

"In my opinion, there is nothing in the Prison Act 1952 that confers power to make regulations which would deny, or interfere with, the right of the respondent, as a prisoner, to have unimpeded access to a court. Section 47, which has already been quoted, is a section concerned with the regulation and management of prisons and, in my opinion, is quite insufficient to authorise hindrance or interference with so basic a right. The regulations themselves must be interpreted accordingly, otherwise they would be ultra vires."

48. In Reg. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C.115 the issue was whether prisoners could lawfully be denied interviews with investigative journalists for the purpose of setting in train a legal review of their convictions. Lord Steyn dealt with the applicable principle at p.120:

"The restrictions on the rights of prisoners

A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner's liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that `a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication:' see Raymond v. Honey [1983] AC 1, 10G; Reg. v. Secretary of State for the Home Department, Ex parte Leech [1994] QB 198, 209D. Rightly, Judge L.J. observed in the Court of Appeal in the present case that `the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody:' [1999] Q.B. 349, 367."

49. The House of Lords held that, on the facts, the prevention of interviews with the journalists constituted an unjustifiable interference with the prisoners' right of freedom of expression.

50. Mr Pannick submitted that this decision demonstrated that a prisoner was entitled to exercise any of the rights that he would have been able to exercise if at liberty unless they were incompatible with the exercise of good order and discipline in the prison. In that case the right in play was freedom of expression. In the present it was the right to found a family. The provision of a sample of semen for the purpose of artificial insemination was not incompatible with good order and discipline and therefore should be permitted. Mr Pannick was able to support this argument by drawing our attention to the fact that an agreement had in fact been concluded between the appellant and the Secretary of State whereby a clinic official would attend Long Lartin prison in order to collect a sample of semen from the appellant to be used exclusively for the purpose of a fertility test. If a sample could be taken for that purpose, there was no reason why a sample should not be taken for the purpose of artificially inseminating Mrs Mellor.

51. Miss Rose submitted that this submission ignored the true reasoning that led to the result in Simms. The House of Lords held that imprisonment was a justifiable interference with the general right of freedom of expression. This was not simply because it was necessary in order to maintain good order and discipline in the prison, but because the restriction on freedom of expression was part of the deprivation of liberty that imprisonment was designed to achieve. The appellants succeeded in Simms because of the special reason why they wished to have interviews with the journalists - namely to attempt to procure a review of their convictions. This was a particularly important function of freedom of expression and to prevent it was disproportionate to the social need that justified imprisonment.

52. Passages in the speech of Lord Steyn, at p.128G and 129D, and of Lord Hobhouse, at p.138C, in Simms lend some support to Mr Pannick's submission that it is only lawful to restrict a prisoner's freedom of expression to the extent that this is both necessary and proportionate in the interest of maintaining order and discipline in prison. On considering the speeches as a whole, however, I have concluded that they recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but as part of the penal objective of deprivation of liberty. How far freedom of expression could justifiably be restricted was a question of proportionality. In Simms it was disproportionate to prevent interviews with journalists that were directed to gaining access to justice.

53. At p.127 Lord Steyn said:

"The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil."

54. I consider that this passage supports Miss Rose's analysis. Lord Steyn's examples of justifiable interference with freedom of speech attributed the justification both to the punitive object of deprivation of liberty and to the need for discipline and control in prisons.

55. In his short concurring speech, Lord Hoffmann said at p.132:

"What this case decides is that the principle of legality applies to subordinate legislation as much as to Acts of Parliament. Prison regulations expressed in general language are also presumed to be subject to fundamental human rights. The presumption enables them to be valid. But it also means that properly construed, they do not authorise a blanket restriction which would curtail not merely the prisoner's right of free expression, but its use in a way which could provide him with access to justice."

56. This suggests to me that Lord Hoffmann contemplated as justifiable a degree of deprivation of the right of free expression as part of the punitive regime.

57. That Lord Millett was of this opinion is plain from the following passage at p.144-5 of his speech:

"It is an inevitable and intended consequence of a custodial sentence that the prisoner should be deprived of the right to be visited by anyone he likes when and as often as he wants. Visits by close members of the prisoner's family are severely curtailed. But a total ban on visits, even by journalists, could not be justified. For the reasons given by my noble and learned friend, Lord Steyn, a refusal to allow the prisoner to be interviewed by a responsible journalist investigating a complaint that he had been wrongly convicted would strike at the administration of justice itself."

58. In Simms the House of Lords were expressly interpreting English law in accordance with the Convention on the premise that the relevant principles formed part of the common law. The approach under the Strasbourg jurisprudence and under English domestic law is the same. The consequences that the punishment of imprisonment has on the exercise of human rights are justifiable provided that they are not disproportionate to the aim of maintaining a penal system designed both to punish and to deter. When the consequences are disproportionate, special arrangements may be called for to mitigate the normal effect of deprivation of liberty. With these principles in mind I turn to consider the policy of the Secretary of State in relation to artificial insemination.

The policy of the Secretary of State.

59. The Secretary of State does not refuse to facilitate a prisoner to provide semen for the artificial insemination of his wife in all circumstances. He responds to requests for such a facility according to a policy. In his letter of 9 November 1998, which I have set out at paragraph 16 above, Lord Williams of Mostyn described the approach of the Secretary of State. Mr Pannick was critical of this letter. He attacked, in particular, the statement that the policy was designed "to avoid the possibility of AI being used as an alternative to conjugal visits". I agree that it is difficult to make sense of this statement and Miss Rose did not seek to do so. Instead she referred us to the more coherent statement of the Secretary of State's policy in Mr Sanderson's statement of 1 November 1999, which I have set out in paragraph 17. These also came in for attack from Mr Pannick.

60. The most significant element in the statement of policy, which was referred to by both Lord Williams and Mr Sanderson, was that permission for artificial insemination facilities would only be granted in exceptional circumstances. Mr Pannick accepted that if his submissions on behalf of the appellant were to succeed, he had to demonstrate that this policy was irrational. That is because it is not possible to demonstrate that any exceptional circumstances apply in the case of the appellant and his wife. Mr Pannick submitted that the reasons given by Mr Sanderson for the Secretary of State's policy were indeed irrational.

61. Paragraph 3 of Mr Sanderson's letter falls into two parts. First he set out six `general considerations' that the Secretary of State takes into account when considering whether exceptional circumstances exist. Then he sets out three reasons for the policy that restricts the provision of facilities for artificial insemination to exceptional circumstances. I propose to start by considering those reasons.

62. (a) It is an explicit consequence of imprisonment that prisoners should not have the opportunity to beget children whilst serving their sentences, until they come to a stage where they are allowed to take leave on temporary licence.

Mr Pannick criticised the use of the adjective `explicit'. I agree that this word does not seem appropriate. I suspect that Mr Sanderson meant that deprivation of the right to beget children is part and parcel of the deprivation of liberty that imprisonment is intended to effect. Such a statement does no more than restate the policy. It indicates that it is deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children.

63. (b) Serious and justified public concern would be likely if prisoners continued to have the opportunity to conceive children while serving sentences.

Mr Pannick criticised this reason also. He argued that public concern was not an appropriate touchstone for penal policy.

64. Miss Rose did not accept this. She referred us to Regina v Secretary of State for the Home Department, ex parte Stafford [1998] 1WLR 503 - in which the policy of the Secretary of State in relation to the release of prisoners serving mandatory life sentences was challenged. It was argued that danger to the public was the only criterion that justified continued detention of a life sentence prisoner beyond the completion of the punitive term. This Court rejected this submission. Lord Bingham C.J. held that mandatory life sentence prisoners were subject to a different regime to that of discretionary life sentence prisoners. Of the former he said at p.517:

"Their release is subject to the discretion of the Secretary of State. The only statutory constraint on his exercise of discretion is that he may not (subject to section 36 of the Act of 1991 and section 30 of the Act of 1997) release a mandatory life sentence prisoner unless the board has recommended him to do so and he has consulted the Lord Chief Justice and the trial judge if available. He is not obliged to release such a prisoner even if the board, the Lord Chief Justice and the trial judge recommend release, and in deciding whether or not to release he may properly have regard to considerations of a broader character than danger to the public. Factors relevant to release include policy reasons, public acceptability and the need to maintain public confidence in the system of criminal justice. The Secretary of State has publicly directed the Parole Board that in exercising his discretion to release a prisoner under section 35(2) he takes account of matters going beyond the risk posed by the prisoner, and that he is concerned with the wider political implications of release, including the effect on public confidence in the life sentence system which release might have, and the public response to the release of a prisoner."

65. Miss Rose submitted that this passage demonstrated that public perception was a legitimate element of penal policy. I agree. Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system.

66. Furthermore, Mr Pannick's submissions did not recognise the significance of the word `justified' in the phrase `justified public concern'. A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. Mr Pannick argued that questions of ethics should be left to those agencies responsible for providing the facilities for artificial insemination - they were not a legitimate consideration when formulating penal policy. I do not agree. When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.

67. (c) The disadvantage of single parent families.

Here again Mr Pannick submitted that this was not a material consideration when formulating penal policy. He argued that there were many circumstances in which children came to be brought up in single parent families and there could be no justification for the State to attempt to prevent this in the case of prisoners. Again, I do not agree. By imprisoning the husband the State creates the situation where, if the wife is to have a child, that child will, until the husband's release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.

68. For those reasons Mr Pannick has failed to make out his case that the Secretary of State's policy only to facilitate artificial insemination in exceptional circumstances is irrational. Mr Pannick accepted that there were in this case no exceptional circumstances, and he was right to do so. It follows that the question of whether each of the six general considerations set out in Mr Sanderson's letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.

69. For these reasons I have concluded that the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.

LORD JUSTICE PETER GIBSON:

70. I agree

LORD JUSTICE LATHAM:

71. I also agree.

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