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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mellor, R (on the application of) v Secretary Of State For Home Department [2000] EWHC Admin 385 (31 July 2000)
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Cite as: [2000] EWHC Admin 385
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QUEEN and SECRETARY OF STATE FOR HOME DEPARTMENT v. GAVIN MELLOR [2000] EWHC Admin 385 (31st July, 2000)
Case No: 561/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 31 July 2000
THE HON MR JUSTICE FORBES
THE
QUEEN |
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- v - |
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GAVIN MELLOR |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Mr David Pannick QC and Miss Flo Krause (instructed by A S Law) appeared for the Applicant
Miss Dinah Rose (instructed by the Treasury Solicitor) appeared for the Respondents
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE FORBES:
1. Introduction In these proceedings the Applicant ("Mr Mellor") seeks judicial review of the decision of the Secretary of State for the Home Department ("the Secretary of State"), made on 3 November 1998 and communicated to Mr Mellor on 5 November 1998, not to allow his application for artificial insemination.
2. The Background Facts 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.
3. 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: see paragraph 2 of his affidavit dated 27 May 2000.
4. 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.
5. The first formal review of Mr Mellor's case by the Parole Board will take place in late 2002, 3 1/2 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: see paragraph 3 of his affidavit dated 27 May 2000.
6. 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 reoffending, 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.
7. 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.
8. 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 to 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."
9. 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 (I have corrected the spelling and, where appropriate, have inserted punctuation):
"Dear Governor,
I would be very grateful if you would allow me my right to found a family by means of artificial insemination. Article 12 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"."
10. 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 2 1/2 years. We are still very much in love and want nothing more than to have a child together."
11. 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."
12. 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.
13. In a 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 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 ..."
14. 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."
15. 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 whether 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."
16. 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 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 interest 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 the 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."
17.. The Legal Framework
(i) 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
(i) 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 ..."
(ii) 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
4 (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."
(iii) Subject to the possibility of an earlier temporary release (as to which, see paragraphs 6 to 8 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.
(iv) It is common ground between the parties that a convicted prisoner retains all civil rights which are not removed expressly or by necessary implication as the result of lawful detention in custody. In Raymond v Honey (1983) 1 AC 1 Lord Wilberforce stated the relevant principle in the following terms
"I deal first with the appeal ... there are two basic principles from which to start ...
...
Secondly, 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: see R v Board of Visitors of Hull Prison, ex parte St Germain (1979) QB 425, 455 .."
In R v Secretary of State for the Home Department, Ex parte Simms (1999) 3 WLR 328 Lord Steyn expressed the principle as follows:
"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 1 AC 1, 10G; R v Secretary of State for the Home Department, Ex parte Leech (1994) QB 198, 209D. Rightly, Judge LJ 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) QB 349, 367."
(v) The following two Articles of the European Convention on Human Rights ("the ECHR") are also relevant to and formed part of the submissions made by the parties to the present proceedings:
(a) "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."
(b) "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 Parties' Submissions
18. On behalf of Mr Mellor, Mr Pannick QC introduced his argument with the following three propositions, which, in effect, summarised the main grounds of challenge to the Secretary of State's decision.
Proposition 1
English law recognises that prisoners continue to enjoy all their civil rights, except those expressly removed or removed by necessary implication (see paragraph 17 (iv) above). Mr Mellor's right to have a child by artificial insemination and thus to found a family, if he and his wife wish to do so, has not been taken away expressly by any statutory or other provision nor has it been removed by necessary implication, because no question of prison security, order or discipline arises by reason of its proposed or actual exercise. Accordingly, Mr Mellor still enjoys that right, is fully entitled to exercise it and the Secretary of State's refusal to allow him to do so in an unlawful interference with that right. Furthermore, the Secretary of State's policy with regard to artificial insemination, by reference to which Mr Mellor's request was refused, is unlawful because it fails to proceed from the correct legal starting point.
Proposition 2
In any event, the Secretary of State has no proper basis for refusing Mr Mellor's request. The approach actually adopted by the Secretary of State when refusing Mr Mellor's request was both unjustified and paternalistic. In effect, the Secretary of State has irrationally concerned himself with questions as to the stability of Mr and Mrs Mellor's marriage and whether it is in the best interests of the child to have a father who is in prison. Any decision that Mr and Mrs Mellor should bring a child into the world is solely a matter for them and is not any business of the Secretary of State. The Secretary of State should have confined himself to questions of prison security and order and discipline and not interfered in matters which are solely the business of Mr and Mrs Mellor.
Proposition 3
When considering the lawfulness of the Secretary of State's refusal, the Court should bear in mind that his decision imposes a substantial detriment upon Mrs Mellor who necessarily retains all her civil rights. The Court should be slow to legitimise a decision of the Secretary of State which imposes such a significant detriment upon her and which, in effect, prevents her from exercising her own fundamental right to found a family.
20. As I understand it, propositions 1 and 2 summarise the two principal grounds of challenge in this case. Proposition 3 applies equally to and reinforces each of the two main grounds.
21 The first ground of Challenge
Mr Pannick submitted that the central question raised by the first ground of challenge is whether Mr Mellor's right to have a child by means of artificial insemination has either been expressly removed or has been lost as an inevitable consequence of his lawful detention in custody: see the observations of Judge LJ, approved by Lord Steyn in Ex parte Simms (supra). He submitted that there was no rule of law and no express statutory or regulatory provisions which deprive Mr Mellor of that right. He suggested that, far from its loss being an inevitable consequence of Mr Mellor's lawful imprisonment, the Secretary of State had actually recognised that in certain circumstances a prisoner can and should enjoy such a right: see the terms of the policy itself and paragraphs 6 and 14 of Mr Sanderson's affidavit quoted above.
22. Mr Pannick argued that it is well-established that the more substantial the interference with a fundamental right (such as the right to found a family), the more the Court will require by way of justification, before it can be satisfied that the interference is reasonable in a public law sense. Only a pressing social or other need is capable of providing the necessary justification. In support of that submission, Mr Pannick referred to and relied upon the following passages in the speeches of Lord Steyn and Lord Hoffman in Ex parte Simms (supra) at page 340 B-E and F-H and page 341 F-H respectively:
Per Lord Steyn
".. in any event, the approach of judicial deference to the views of prison authorities enunciated in Pell v Procunier does not accord with the approach under English law. It is at variance with the principle that only a pressing social need can defeat freedom of expression as explained in the Derbyshire case (1993) AC 534, 550H-551A, the Leech case (1994) QB 198, 212 E-F and Silver v United Kingdom (1980) 3 EHRR 475 514-515, paras 372-375 (the commission); 1983) 5 EHRR 347, 377 para 99(e) (the court). It is also inconsistent with the principle that the more substantial the interference with fundamental rights the more the court will require by way of justification before it can be satisfied that the interference is reasonable in a public law sense: R v Ministry of Defence Ex parte Smith (1996) QB 517, 554 E-F.
...
But one cannot lose sight that there is at stake a fundamental or basic right, namely the right of a prisoner to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner's conviction and to publicise his findings in an effort to gain access to justice for the prisoner. In these circumstances even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle as Sir Rupert Cross explained in successive editions of his classic work: Statutory Interpretation, 3rd ed (1995) pp 165-166. This is called "the principle of legality:" Halsbury's Laws of England, 4th ed. reissue vol 8(2) (1996) pp 13-14, para 6. Ample illustrations of the application of this principle are given in the speech of Lord Browne-Wilkinson, and in my speech in R v Secretary of State for the Home Department Ex parte Pierson (1998) AC 539, 573G-575D, 587C-590A. Applying this principle I would hold that paragraphs 37 and 37A leave untouched the fundamental and basic rights asserted by the applicants in the present case."
Per Lord Hoffman:
"... Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
23. Mr Pannick submitted that there was no pressing need in this case which was capable of justifying the Secretary of State's interference with Mr Mellor's fundamental right to found a family. He argued that the position in this case was quite the reverse. The exercise of Mr Mellor's right to found a family by having a child by artificial insemination, involves no threat to prison security and good order and Mr Pannick pointed out that none was suggested by the Secretary of State. On the contrary, the exercise of the right in this way would obviously serve to promote the interests of Mr Mellor's family and his own social rehabilitation, in accordance with Rule 4 of the Prison Rules 1999 (above).
24. Furthermore, Mr Pannick maintained that a fundamental right was engaged in the present case, namely Mr Mellor's right to found a family. The Prison Act 1952 and the Prison Rules must therefore be construed consistently with that fundamental right, in accordance with the "principle of legality" which was so succinctly stated in the speeches of Lord Steyn and Lord Hoffman in Ex parte Simms in the passages to which I have already referred. In other words, in the absence of express language or necessary implication to the contrary, the Court will presume that it was Parliament's intention that the words of the Prison Act 1952 together with the rules made under that Statute (ie the Prison Rules 1999) and, thus, the relevant powers of the Secretary of State to manage prisons and prisoners are to be subject to the basic and fundamental rights of the individual. In the instant case the fundamental right in question is Mr Mellor's right to found a family by having a child by artificially inseminating his wife.
25. Mr Pannick submitted that the need for and the absence in this case of any pressing need which is capable of justifying the Secretary of State's interference with Mr Mellor's fundamental right to found a family, such as the impossibility of accommodating Mr Mellor's wishes without jeopardising prison security, order or discipline, is clearly demonstrated by the reasoning of the European Commission of Human Rights in cases involving the right to marry under Article 12 of the ECHR (see above). In this context, Mr Pannick referred to Hamer v United Kingdom 4 EHHR 139 (1979) and ELH and PBH v United Kingdom 91A D&R 61 (1997).
26. In Hamer's case the European Commission of Human Rights came to the following conclusion (I quote from the headnote):
"Right to marry Convicted Prisoner. Refusal of right to marry. (Art.12)
National law may regulate the exercise of the right to marry on generally recognised considerations of public interest such as consent, capacity, consanguinity or the prevention of bigamy, but it may not otherwise deprive a person or category of persons of full legal capacity to marry, nor may it substantially interfere with their exercise of that right. To accord prisoners the right to marry involves no general threat to prison security or good order, nor is it in any way harmful to the public interest. Whether resulting from national law governing the exercise of the right or from administrative action by prison authorities, the imposition of any substantial period of delay on the exercise of the right to marry is an injury to its substance."
Mr Pannick referred to and relied upon the following passages in particular in the opinion of the European Commission of Human Rights in Hamer's case:
"(a) Paragraph 58
The Commission has also previously held that the right to `found a family' guaranteed by Article 12 was not infringed by differences between prison life and life at liberty and the Commission stated as follows:
Although the right to found a family is an absolute right in the sense that no restrictions similar to those in paragraph (2) of Article 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 falls under his own responsibility, and that his right to found a family has not otherwise been infringed: X v Federal Republic of Germany (1961) 4 Yearbook 240.
The Respondent Government have invited it to follow the same approach in this case. However, in the Commission's opinion different considerations apply in the case of the right to marry. 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."
Mr Pannick pointed out that "the above-mentioned decisions", to which reference is made in paragraph 58 of the opinion, were essentially concerned with the right of prisoners to enjoy conjugal visits - a right which Mr Pannick readily accepted did raise questions of prison security or good order and which he contrasted with Mr Mellor's request for artificial insemination, which did not. Mr Pannick then referred to:
(b) Paragraphs 67 to 71
"67. This situation was not one of the applicant's own choice. His position was in no way comparable to that of a priest or other person who of his own free will renounces the right to marry or puts himself in a position where he cannot exercise it. Nor can it be said that his inability to marry was simply an inevitable result of his imprisonment, or of his actions which led to it, for which the Government were not responsible. 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, particular 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.
68. Some administrative arrangements must of course be made by the prison authorities before a prisoner can marry. However this also applies to other Convention rights, such as the right of access to court (Article 6) and the right to respect for correspondence and family life (Article 8). Some positive action is required on the part of the prison authorities to make these rights effective. A prisoner cannot correspond with his legal adviser or anyone else, unless the authorities transmit his letters. He cannot receive visits from members of his family unless arrangements are made for them to come in. He cannot attend a family funeral unless he is allowed temporary release. Yet the case-law of both the Commission and Court shows that where a prisoner is refused the necessary permission or facilities in such cases, his inability to exercise the right in question is not to be seen as resulting from the mere fact that he is in prison, or from his own conduct. The refusal of the necessary permission or facilities is, rather, to be seen as an interference with the relevant Convention right by the competent authorities, which may or may not be justifiable under the Convention. This was the approach of the Commission and Court in the GOLDER CASE, and that of the Commission in cases involving, for instance, the refusal of permission to attend a family funeral.
69. Following the same approach in the present case, the Commission considers that the respondent Government were responsible for an interference with the exercise of the applicant's right to marry.
70. It remains to be considered whether this interference amounted to a breach of that right, or whether it was justified as resulting from national law governing the exercise of the right to marry or by virtue of any implied limitation on the right. In this connection the Commission notes that the effect of the Home Secretary's decision was to impose a delay on the applicant's proposed marriage. It could not take place until he found himself outside prison. The earliest he could have been released on parole was in June 1976, some 15 months later. If, as in fact occurred, he was not granted parole, the possibility of release on home leave did not arise until May 1977, over two years after the decision. In the event the applicant's relationship with his fiancee ended before either period had expired.
71. 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.
72. In the Commission's opinion the imposition by the State of any substantial period of delay on the exercise of this right must in general be seen as an injury to its substance. This is so whether the delay results from national law purporting merely to `govern the exercise' of the right, from administrative action, or a combination of both. Further, no general consideration of public interest arising from the fact of imprisonment itself can justify such interference in the case of a prisoner. As the Commission has already pointed out, no particular difficulties are involved in allowing the marriage of prisoners. In addition there is no evidence before the Commission to suggest that, as a general proposition, it is in any way harmful to the public interest to allow the marriage of prisoners. Marriage may, on the contrary, be a stabilising and rehabilitative influence."
28. Mr Pannick submitted that Hamer's case clearly showed that the fact of imprisonment alone did not justify interference with a prisoner's fundamental right to marry which is enshrined in Article 12 of the ECHR, because neither the proposed nor the actual exercise of that right by the prisoner involves any threat to prison security, good order or discipline. He argued that, by a parity of reasoning, the fact of imprisonment does not justify interference with a prisoner's fundamental right to found a family by the artificial insemination of his wife.
29. Mr Pannick argued that the European Commission of Human Rights had correctly drawn a clear distinction between a prisoner who sought to exercise the right to marry (which involves no threat to prison security or good order) and one who sought to exercise the right to enjoy conjugal visits (which, for obvious reason, does pose a threat to prison security or good order). Mr Pannick submitted that Mr Mellor's wish to exercise his fundamental right to found a family by the artificial insemination of his wife (the right to found a family being also a right enshrined in Article 12 of the ECHR), like a prisoner's exercise of his right to marry, posed no threat to prison security, good order or discipline (nor was any such threat suggested by the Secretary of State) and that there was therefore no pressing need which was capable of justifying the Secretary of State's interference with that fundamental right by refusing to allow Mr Mellor to provide the necessary specimen of semen.
30. In the case of ELH & PBH, the European Commission of Human Rights had to consider whether, inter alia, the refusal of the Secretary of State to authorise conjugal visits by a prisoner to his spouse constituted a breach of Articles 8 and/or 12 of the ECHR. The European Commission of Human Rights stated its conclusions in the following terms:
"The Commission considers that it is particularly important for prisoners to keep and develop family ties in order 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 (No 17142/90 Dec 10.7.91, unpublished).
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 violation of Articles 8 and 12 of the Convention is disclosed. As a result, this part of the application is manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 27 para 2 of the Convention."
31. Mr Pannick drew attention to the way in which the European Commission of Human Rights had expressed its opinion in the case of ELH & PBH. He submitted that, whilst that opinion correctly accepted that a refusal to allow a prisoner conjugal visits was an interference with the prisoner's Article 8 right to respect for family life which was justified by the need to prevent disorder or crime, the opinion had also clearly proceeded on the basis that the same would not be true of any interference with a prisoner's proposed or actual exercise of his right to found a family by the artificial insemination of his wife.
32. It was Mr Pannick's submission that the clear implication of the opinion expressed by the European Commission of Human Rights in the case of ELH & PBH is to the effect that any interference with a prisoner's exercise of the right to found a family by means of artificial insemination could not be justified by the need to prevent crime or disorder or to preserve prison security or discipline and that any such an interference would therefore be a breach of Article 12 of the ECHR.
33. Drawing together the various strands of his arguments, Mr Pannick summarised the first ground of challenge to the Secretary of State's decision in the following terms.
(i) Although he is a prisoner in lawful custody, Mr Mellor still enjoys all his civil rights unless any such right has been expressly removed or its loss is an inevitable consequence of his lawful detention in custody.
(ii) Neither the relevant Statute nor the relevant Regulations contains any express provision which removes Mr Mellor's fundamental right to provide semen for the artificial insemination of his wife in order to found a family (the "right"), nor does any principle of the common law remove that right.
(iii) The loss of that right is not an inevitable consequence of Mr Mellor's lawful detention in custody.
(iv) Accordingly, despite being a prisoner in lawful custody, Mr Mellor still enjoys and is entitled to exercise that basic and fundamental right, unless there is a pressing need which justifies the Secretary of State's interference with that right and entitles him to refuse to allow Mr Mellor to provide a specimen of semen for the artificial insemination of his wife.
(v) Artificial insemination involves no physical contact between Mr and Mrs Mellor. It poses no threat to prison security or good order and discipline. There is thus no pressing need which justifies the Secretary of State's interference with Mr Mellor's right to provide a specimen of semen.
(vi) Accordingly, the Secretary of State has no legal basis for refusing to allow Mr Mellor to provide the necessary semen for the artificial insemination of his wife. His decision to do so is therefore unlawful.
(vii) Furthermore, the policy upon which the Secretary of State relies and which he sought to apply in this case is itself unlawful because it fails to proceed from the correct legal starting point namely that, notwithstanding he is a prisoner in lawful custody, Mr Mellor still retains the right to found a family by the artificial insemination of his wife and is entitled to exercise that right, unless there is a pressing need which justifies interference with it.
34. On behalf of the Secretary of State, Miss Rose emphasised that a sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner, including his liberty, personal autonomy, freedom of association and freedom of movement: see Ex parte Simms per Lord Steyn at page 331G (see above).
35. Miss Rose maintained, correctly in my view, that it is an inevitable consequence of his lawful detention in custody that a prisoner's right to cohabit with his wife will be restricted for the duration of his sentence, except where release on licence (temporary or otherwise) is permitted.
36. Miss Rose argued that Mr Pannick's submissions in support of the first ground of challenge were fatally flawed because they were essentially based on an assertion that Mr Mellor has a right to provide a specimen of semen for the artificial insemination of his wife. It was thus Miss Rose's principal submission, with regard to the first ground of challenge, that Mr Mellor has no such right and that the Secretary of State is under no obligation, whether by reference to domestic law or to the ECHR, to provide access to artificial insemination facilities so that a prisoner, who cannot cohabit with his wife because he is in lawful custody, will be able to conceive a child by artificial instead of natural means during the currency of that prison sentence.
37. In order to examine whether Mr Mellor does have any fundamental right to provide semen for the artificial insemination of his wife, Miss Rose also referred to Articles 8 and 12 of the ECHR, which she accepted guarantee respectively the right to respect for private and family life and the right to marry and found a family. However she submitted that Article 8 was not directly engaged on the facts of this case. Although Article 8 requires the State to respect family life where it exists, it does not give any right to create a family by the conception of a child: see Harris, O'Boyle and Warbrick on the Law of the European Convention Human Rights 1995 edition, at page 313, where the editors state as follows:
"It should be noticed at the outset that the obligation on the state is to respect family life: it does not allow persons to claim a right to establish family life, eg by marrying or having the opportunity to have children, nor a general right to establish family life in a particular jurisdiction. However, the right to respect for one's family life may involve the recognition by the state of the reality of family life already established."
38. In my view, Miss Rose's foregoing submissions with regard to Article 8 of the ECHR are plainly correct. I also agree with her further submission that, if Mr Mellor does enjoy any fundamental right to provide a specimen of semen for the artificial insemination of his wife and thus found a family, that right must arise under or be enshrined in Article 12 of the ECHR.
39. So it was that Miss Rose referred to the wording of Article 12 of the ECHR and submitted that, although the European Commission of Human Rights has held that Article 12 does give couples the right to marry, even when there is no prospect of cohabitation (see eg Hamer's case), the Commission has also made it clear that Article 12 does not impose any obligation on the State to facilitate the conception of a child so that such a couple can found a family. Miss Rose referred to and relied upon X v United Kingdom No 6564/74 2DR 105, in which a long-term prisoner complained of being deprived both of his conjugal rights and of the exercise of his paternal rights. In giving its opinion, the Commission stated as follows:
"With a view to his family rights the applicant has also complained that he had been prevented from "founding further family". It is true that Art. 12 of the Convention secures to everyone of marriageable age the right to found a family. But even assuming that this provision were applicable to a person who is already married and has children, the Commission could not, in the circumstances of the present case, reach the conclusion that a violation of Art. 12 has taken place. 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."
40. Miss Rose also relied on X & Y v Switzerland No 8166/78 13DR 241 in which the applicants, who were a married couple, complained of the Swiss prison authorities refusal to allow them sexual relations during their detention in prison. In that case, the European Commission of Human Rights expressed the following opinion:
"The applicants are married and thus have 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."
41. It was Miss Rose's submission that Hamer's case correctly drew a clear distinction between the right to marry under Article 12 and the right to found a family by the conception of a child and, in doing so, was entirely consistent with X v UK and X and Y v Switzerland. Miss Rose submitted that there was nothing in the decision in Hamer's case which justified drawing the type of analogy between the right to marry and the right to found a family which Mr Pannick had sought to draw in his submissions on behalf of Mr Mellor. She submitted that conception by artificial insemination is simply an artificial means of procreation and that it is clearly established that the Article 12 right to found a family does not mean that a person must be given, at all times, the actual possibility of procreating his descendants: see X v UK (above). Miss Rose repeated that, where a person is in lawful custody, a refusal to allow conjugal visits, whether or not for the specific purpose of procreation, will be a justifiable interference with that person's Article 8 right to respect for his family life and cannot, at the same time, constitute a violation of his Article 12 right to found a family: see X v UK and X & Y v Switzerland. She argued that the only difference between those cases and the present case is that Mr Mellor is seeking to procreate his descendants by the artificial insemination of his wife, because he is not able to cohabit with or enjoy conjugal visits from his wife. It is by identifying that basic difference that it can be seen that, in reality, the right being asserted by Mr Mellor in this case is the right to provide a specimen of semen for the artificial insemination of his wife. Miss Rose suggested that Mr Mellor enjoyed no such right, whether under Article 12 or otherwise. She argued that, on analysis, Mr Mellor was not seeking to exercise a "right", rather he was seeking to obtain a privilege or benefit to which he was not entitled as of right.
42. Miss Rose pointed out that there is no case in which the European Commission of Human Rights or the Courts of the UK have held that there is any right of access by a prisoner to artificial insemination services or that there is any obligation on the State to facilitate access to such services so as to enable the conception of a child. She submitted that it was significant that in ELH v UK, whilst the European Commission of Human Rights noted that artificial insemination was not ruled out in the case of prisoners in the UK, the Commission did not suggest that prisoners had any right of access to artificial insemination services to overcome the delay in their ability to found a family by natural means, which delay was an inevitable consequence of their imprisonment. I agree with that submission.
43. I have come to the conclusion that Miss Rose's submissions on the first ground of challenge are correct. On analysis, for the reasons advanced by Miss Rose, the first ground of challenge can be seen to be founded on the assertion that Mr Mellor has a basic right of access to artificial insemination facilities. I accept that his purpose is the artificial insemination of his wife so that she can conceive a child. However, if Mr Mellor does not enjoy any such basic right of access to artificial insemination facilities, the entire basis for the first ground of challenge collapses. In my judgment, it is clear that Mr Mellor does not enjoy any such right, whether by reference to the domestic law of the UK or the ECHR. In reality, what Mr Mellor seeks is to be granted the privilege or benefit of being afforded access to artificial insemination services because an inevitable consequence of his lawful detention in custody is that he is unable to cohabit with his wife and he cannot enjoy any conjugal visits from her, therefore making it impossible for his wife to conceive a child by the usual natural means. A further inevitable consequence of his lawful imprisonment is that Mr Mellor requires the co-operation and assistance of the Secretary of State to achieve the conception of a child by artificial means. In my view, Mr Mellor is not entitled, as of right, to insist upon that co-operation and assistance being provided to him. In any event, I also agree with Miss Rose's submission that, even if Mr Mellor does have a civil right of access to facilities for artificial insemination, the present restriction on that `right' is an inevitable consequence of his imprisonment, because he has lost the right to freedom of association with his wife (including cohabitation and the artificial equivalent for making her pregnant) in consequence of that lawful imprisonment. His position in that regard cannot be any more favourable because he wishes to found a family by artificial means than would be the case if he sought to found a family by cohabiting with his wife.
44. It follows from my foregoing conclusions that I accept Miss Rose's submission that the Secretary of State is entitled to formulate a policy for dealing with requests by prisoners for access to artificial insemination facilities because he has a discretion whether or not to make the benefit or privilege of such services available to such a prisoner. I reject Mr Pannick's submissions to the contrary. Accordingly, the remaining issue is whether, in the circumstances and on the facts of this case, the Secretary of State's actual policy is irrational and/or whether his decision to refuse Mr Mellor's request was irrational or unreasonable in the public law sense. I therefore turn now to consider this second main ground of challenge.
45. Mr Pannick referred to the contents of paragraphs 3, 5 and 12 of Mr Sanderson's affidavit (see above) and submitted that none of the main factors relied on by the Secretary of State in formulating and applying his policy with regard to artificial insemination for prisoners is tenable, far less of sufficient weight to override the interests of Mr Mellor. He argued that none of these various matters, whether considered individually or in aggregate, rendered the policy reasonable in public law terms or justified the particular decision reached in Mr Mellor's case.
46. Mr Pannick then analysed the various main criteria, considerations and reasons in question and criticised each of them, either because it was illogical and/or unjustified on the facts of this case and/or unduly paternalistic and/or because it was a wholly unwarranted interference by the Secretary of State in matters which were none of his business (eg the stability of the marriage and the welfare of the child): see generally paragraph 13 of Mr Pannick's helpful written skeleton submissions. Accordingly, Mr Pannick submitted that the Secretary of State's existing policy and, in any event, his decision in Mr Mellor's particular case each ignores relevant principles of law and has regard to irrelevant and immaterial factors and is therefore irrational and/or unreasonable in the public law sense.
47. As I have already indicated and for the reasons I have already stated, I am satisfied that Miss Rose is correct in her submission that the Secretary of State is at liberty to formulate a suitable policy governing the circumstances in which a prisoner will be permitted access to artificial insemination facilities ("the policy"). In my view, for the reasons already given, the formulation of the policy in question by the Secretary of State did not ignore relevant principles of law. Accordingly I also agree with her argument that such a policy and/or any decisions purportedly taken in accordance with it can only be challenged on grounds of irrationality.
48. Miss Rose submitted that the Secretary of State's policy could not be stigmatised as irrational. In formulating his policy, the Secretary of State was entitled to take into account matters of public interest such as: (i) the rights and interests of any child who might be born as a result; (ii) the fact that it is a consequence of imprisonment that a prisoner should not have the opportunity to procreate children during sentence, until the prisoner is permitted to take leave on temporary licence or is otherwise released from prison and (iii) the fact that serious and justified public concern would be likely if prisoners continued to have the opportunity to conceive children during their sentences. Miss Rose suggested that this latter factor is plainly relevant to the effectiveness of imprisonment as a deterrent and to the maintenance of public confidence in the criminal justice system, which is an entirely appropriate consideration for the Secretary of State to take into account when exercising a broad discretion: see R v Secretary of State for the Home Department ex parte Stafford (1998) 1WLR 503 at page 517D (which concerned the Secretary of State's discretion to release a mandatory life sentence prisoner).
49. Miss Rose then pointed out that the Secretary of State's policy properly takes into account the extent to which the opportunity for a prisoner and his or her spouse to conceive a child would be likely to be wholly removed or merely delayed by the fact of imprisonment. The policy also correctly and clearly addresses the question whether the parties would be likely to be able to conceive at the end of the sentence.
50. Miss Rose emphasised that the various considerations which are taken into account by the Secretary of State, when considering requests from prisoners for access to artificial insemination facilities, are not rigid criteria and are treated as guidelines only: see the terms of the policy itself and paragraph 3 of Mr Sanderson's affidavit, quoted above. Miss Rose also maintained that it is clear that each such request is considered on its individual merits, there is no absolute ban on the provision of artificial insemination services to prisoners and any refusal is not a "once and for all" decision. Any number of further applications can be made in the light of changing circumstances and any such further application will also be considered on its merits.
50. I am satisfied that the Secretary of State's policy together with the various considerations which are taken into account together with other relevant factors cannot possibly be categorised as irrational. I accept Miss Rose's submission that the various matters of public interest to which the Secretary of State had regard when formulating the policy in question (see paragraph 5 of Mr Sanderson's affidavit and paragraph 48 above) are entirely appropriate for the reasons advanced by Miss Rose. None of them can be properly stigmatised as irrelevant or immaterial. In my view, the same is true of the various non-rigid general considerations to which the Secretary of State has regard when considering a prisoner's request (see paragraph 3 of Mr Sanderson's affidavit). Accordingly, I am satisfied that there is no basis for challenging the Secretary of State's policy as irrational and I reject Mr Pannick's submission to the contrary.
51. On the assumption (contrary to the conclusion which I have reached and stated above) that a prisoner in lawful custody does have a fundamental right to have access to artificial insemination services so that his wife can conceive a child, I am persuaded that Miss Rose is almost certainly correct in her submission that the various matters of public interest, to which the Secretary of State had regard in formulating his policy, provide the necessary justification for any refusal by the Secretary of State to allow the prisoner access to such facilities. In particular, I take the view that the need to maintain the deterrent effect of imprisonment and public confidence in the system of criminal justice, would be very likely to qualify as a sufficiently "pressing need" to justify the interference with such a right which necessarily results from a refusal of the prisoner's request by the Secretary of State. However, as it seems to me, it is not necessary for me to express any final conclusion on this aspect of the matter.
52. Furthermore, I accept Miss Rose's submission that the policy in question is proportionate to the ends sought to be achieved by the policy in addressing these various matters of public interest, because the policy does not result in a "once and for all" decision and does take into account the extent of the interference with any right to found a family in the particular circumstances of the case.
53. For all the foregoing reasons, I reject Mr Pannick's submission that the Secretary of State's policy ignores relevant principles of law and is irrational because it has regard to irrelevant and/immaterial considerations.
54. Finally, I do not accept Mr Pannick's submission that the Secretary of State's decision in this particular case was irrational and/or Wednesbury unreasonable. In my view, it is clear from the reasons given by the Secretary of State that he did have regard to relevant considerations, did not have regard to immaterial considerations and reached a decision which was reasonable in the public law sense. In reaching that conclusion on the facts of this case, in addition to the conclusions which I have already stated, I have accepted as correct the following submissions by Miss Rose:
(i) Given the age of Mrs Mellor, the evidence concerning the health of Mr Mellor and Mrs Mellor and the dates for temporary leave and tariff expiry, there is no reason to believe that the refusal of artificial insemination while Mr Mellor is in prison will prevent them from conceiving a child. That is confirmed by the opinion of Dr Kingsland in his letter of 12 April 2000: see paragraph 13 above.
(ii) Should that situation change (for example if a fertility problem comes to light or there is reason to think that Mr Mellor's release will be significantly delayed beyond the expiry of his tariff), they are at liberty to make a fresh application, in which event the matter will be reconsidered.
(iii) The relatively minor extent to which any "right" of Mr Mellor and his wife has been infringed is clear from the submission made on their behalf that "artificial insemination is necessary if the Applicant and his wife are to be able to have a child in the near (my emphasis) future, which is what they both want": see para 13(5)(a) of Mr Pannick's written skeleton.
(iv) It is reasonable for the Secretary of State to take into account the fact that Mr and Mrs Mellor's relationship has not been tested in normal conditions, and that its durability is thus uncertain. This is entirely rational. Contrary to Mr Pannick's submission, this aspect of the matter does become the Secretary of State's business when he is being asked to give active assistance to enable Mr and Mrs Mellor to have a child. In such circumstances, the Secretary of State is entitled to consider whether it is morally and socially desirable for the active assistance of the Prison Service to be provided to enable the conception of a child to a person detained in prison. That situation is not comparable to the enormous variety of circumstances in which children are conceived without the assistance of the State. It is therefore appropriate for the State to apply regulatory standards, taking into account the interests of the child and moral and ethical considerations, where medical intervention is required for the conception of a child and the assistance of the Secretary of State is sought to enable that to take place. This is the same basic principle which underlies the Human Fertilisation and Embryology Act 1990.
(v) For the same reasons, the Secretary of State is entitled to consider the stability of Mr and Mrs Mellor's marriage before agreeing to intervene to facilitate the conception of a child. The assessment that there is some doubt over its stability is a conclusion to which the Secretary of State was entitled to come, given that the relationship was formed while Mr Mellor was in prison, that his wife was a member of staff at the time and that they have never actually lived together.
Conclusion
55. Accordingly, for the foregoing reasons, I have come to the firm conclusion that this application must be and is hereby dismissed.
MR JUSTICE FORBES: I direct that the draft judgment, handed down by me today, is to stand as the transcript of my judgment in this matter. For the reasons which appear in that judgment this application is dismissed.
MISS ROSE: My Lord, we would ask for our costs with liability to be postponed generally pursuant to regulation 127?
MR JUSTICE FORBES: Miss Krause?
MISS KRAUSE: My Lord, I cannot oppose that.
MR JUSTICE FORBES: The application is dismissed with costs, such costs to be subject to a detailed assessment on the standard bases if not agreed.
MISS KRAUSE: My Lord, I seek leave to appeal to the Court of Appeal. I had rather anticipated that Mr Pannick would be doing this, however he is unfortunately detained in another court so the responsibility falls to me. I would seek leave to appeal on the basis that there is no direct authority on the point, we are the very first case that has come on this point. It ought to be explored further given the fact that on 2nd October this point might be taken again by somebody else. We ought to keep it in the system as it is now in order to -- it is unlikely to come before the Court of Appeal before----
MR JUSTICE FORBES: If my reasoning is right the coming into force of the Human Rights Act will not make any difference to this particular point.
MISS KRAUSE: I understand that from your Lordship's judgment, yes, absolutely. We take the view that it is likely to make a difference once it is in force simply because your Lordship's interpretation of Article 12, or your Lordship's acceptance of the interpretation put forward by the respondent of Article 12 and how it may not apply in this case, is possibly without foundation and so far without authority so far as in the European Convention.
We have not seen anything directly on the point which would support certainly what the respondent says that of course should be read as, and in that respect it is sufficiently important for the matter to go off to the Court of Appeal.
MR JUSTICE FORBES: Yes, thank you. I do not imagine there is anything you want to say, Miss Rose, is there?
MISS ROSE: My Lord, simply that your Lordship has made it clear and that is firm and reasonable.
MR JUSTICE FORBES: I am not persuaded that there is any real prospect of success in the Court of Appeal. If the Court of Appeal decides that this is a matter involving a sufficient point of principle to engage their intention then no doubt they will say so. So, at this level, I refuse permission to appeal.
MISS KRAUSE: My Lord, the applicant is legally aided, I wonder if I could have detailed assessment of the applicant's costs?
MR JUSTICE FORBES: I order legal assessment of the applicant's costs. Is there anything else?
MISS ROSE: No, my Lord.
MR JUSTICE FORBES: Thank you both very much.
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