EHRM, 18-04-2006, nr. 44362/04

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

The relevant rules are the Prison Rules 1999 (SI 1999 No 728). Rule 4 provides as follows:

The long standing policy of the prison service, set out above in the letter of Secretary of State of 28 May 2003 was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years' imprisonment to serve. His wife was 25 of age. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case.

They challenged the policy rather than its application to their case arguing that it was an unjustified interference with their Article 8 rights. They distinguished that policy from the policy on conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The Government argued that the policy was justified:

The Court of Appeal considered, while the first reason did no more than restate the policy, the second and third reasons were legitimate justifications for the policy. In giving judgment for the court, Lord Phillips said (at paragraphs 44 ff):

For those reasons the court concluded that the policy was not a disproportionate interference with the applicants' rights under Article 8. Lord Phillips remarked that, for any applicant claiming exceptional circumstances, the normal ‘starting point’ should be the need to demonstrate that, if facilities for artificial insemination were not provided, conception would not just be delayed but prevented altogether.

They maintained that the aim of the restriction had to be punishment (as there was no security or other physical or financial barrier) but that, if that was the objective, it would be incoherent to admit of any exceptions to this punitive policy.

In any event, it required considerable justification to take away a fundamental right. Indeed, the starting point of the policy was all wrong: it should be that they had a right to conceive children unless there were compelling reasons against. The applicants relied on the Chamber's judgment in Hirst v. the United Kingdom (no. 2) (no. 74025/01, §§ 41 and 44, ECHR 2004 …). They maintained that the social factors (the interests of the putative child and of society) underlying the policy and the response to their request by the Secretary of State were not factors contemplated by the second paragraph of Article 8 of the Convention.

In any event, there were insufficient reasons to justify the impugned restriction. A request for artificial insemination did not pose a threat to security. There was no rational link between the offence and the punishment: a person convicted of offences against children could coherently be deprived of parental rights whereas the refusal of the requested facilities indiscriminately (except in exceptional cases) was unjustifiable.

As to the application of the policy in their case, the applicants underlined that a refusal of artificial insemination to them meant that their right to found a family would be extinguished: they could not have a child together given the second applicant's age, the accepted point of departure for the consideration of a request for artificial insemination. Even if it could be said that the first applicant forfeited some of his rights when he was imprisoned, the same could not be said of the second applicant, a point with which the Court of Appeal and the Government failed to grapple. They disputed the Secretary of State's conclusion that there was insufficient financial provision: the second applicant owned a property worth 200,000 pounds sterling (‘GBP’), she was following a course in counselling and, on qualification, she would be able to command an hourly rate of 30 GBP. It was unfair to state that their relationship had not been tested: the strength of any relationship (prisoner or other) was uncertain, there was no link between imprisonment and dissolution of relationship and, indeed, the first applicant's imprisonment had not weakened their relationship. In any event, this latter argument was circuitous as it could automatically negate any request for artificial insemination from long term prisoners such as the first applicant. It was equally unjust and circular to argue that the first applicant would be initially absent: it was absence for the foreseeable future that rendered the request for artificial insemination necessary — if the first applicant was to have been shortly released, he would not have needed to make the request.

The Government submitted that the restriction was a punishment the consequences of which were not disproportionate to the aim of maintaining a penal system designed to punish and deter.

The policy was consistent with relevant Convention case-law namely, five Commission decisions (No. 6564/74, Dec. 21.5.75, 2 Decision and Reports (‘DR’), p. 105; No. 8166/78, Dec. 3.10.78, 13 DR, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission report of 13 December 1979, 24 DR, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission report of 10 July 1980, 24 DR, p. 72; and ELH and PBH v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 1997, 91A DR, p. 61). The Court of Appeal in the above-cited Mellor case accurately summarised that case-law as containing five principles: the qualifications on the right to respect for family life applied equally to Article 12; imprisonment was incompatible with the exercise of conjugal rights and consequently involved an interference with the right to respect for family life; this restriction was ordinarily justifiable under the provisions of Article 8 § 2 of the Convention; in exceptional circumstances it might be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a particular human right; and there was no Convention jurisprudence which indicated that a prisoner was entitled to assert the right to found a family by artificial insemination. The approach of the Court of Appeal, as noted in the Mellor and the present case, was identical to that of the Convention organs.

The Government further maintained that the policy was consistent with the Convention because it enabled examination of the individual merits of each case. Its justification was to be found in three principles: losing the opportunity to beget children was one of the ordinary consequences of imprisonment; public confidence in the operation of the prison system would be undermined if prisoners could continue to conceive children while serving long sentences for serious offences; and the inevitable absence of one parent for a long period would have negative consequences for the child and for society as a whole. Accordingly, the normal starting point was that artificial insemination facilities would not be granted unless their refusal would prevent the founding of a family altogether. Thereafter, the authorities would take into account other relevant factors such as raising a child in the absence of a father, the stability of the relationship and public concern.

As to the application of the policy in the present case, the Government noted that the fact that the applicants would not be able to conceive children naturally was overcome by the other reasons relied upon by the Secretary of State.

Finally, the Government maintained that they should be afforded a wide margin of appreciation, the case involving as it did a claim that the State should take positive action to promote Convention rights in an area of social policy where difficult choices had to be made between the rights of an individual and the needs of society. They noted that there did not appear to be any European consensus in favour of the provision of facilities for artificial insemination of prisoners.

The applicants, in response, argued that the jurisprudence cited by the Government was unreliable: it was Commission jurisprudence, it was old and therefore not indicative of current evolutions and trends and it was not, in any event, directly on point. The matter was therefore free of precedent. They would pay for the requested facilities themselves, so there would be no financial burden. The Government had failed to develop or explain why not being able to beget children should be necessarily part of the punishment of imprisonment. It was a policy that discriminated against the first applicant vis-à-vis a life sentence prisoner who had been allowed into open conditions with trips home. The applicants also contended that moral considerations were not a matter for the Government when considering the effectiveness of human rights. The Government contested that argument.

Having regard to the parties' submissions, the Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

It is well established that prisoners do not forfeit their Convention rights following conviction and sentence and continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty: those rights include the right to continue to enjoy respect for family and private life (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69, ECHR 2005 … citing, inter alia, Ploski v. Poland, no. 26761/95, judgment of 12 November 2002). As to the present case, artificial insemination relates to the applicants' private and family life in such a way that the question of their access thereto falls within the ambit of Article 8 (the above-cited cases of E.L.H. and P.B.H v. the United Kingdom, Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI and Aliev v. Ukraine, no. 41220/98, § 187–189, 29 April 2003.

It nevertheless remains the case that any measure depriving a prisoner of liberty by definition has some effect on the normal incidents of liberty and inevitably entails limitations and controls on the exercise of Convention rights, including a measure of control on prisoners' contacts with the outside world and, more particularly for present purposes, on the possibility of begetting a child. The fact of such control is not, in principle, incompatible with the Convention (Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, § 98; the above-cited decision in Kalashnikov v. Russia; Klamecki v. Poland (no. 2), no. 31583/96, § 144, 3 April 2003; and Aliev v. Ukraine, cited above, at § 187). The key issue is whether the nature and extent of that control can be considered compatible with the Convention.

The first step in any such assessment is to identify whether the impugned restriction constitutes an interference with the applicants' right to respect for their private and family lives (the State's negative obligations) or a failure by the State to fulfil a positive obligation in those respects.

The Court accepts that the boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition (Selmani v. Switzerland (dec.), no. 70258/01, ECHR 2001 VII). It has indeed previously classified certain restrictions on the exercise of contact rights of prisoners as interferences as regards, inter alia, ordinary visits (Messina v. Italy (no. 2), no. 25498/94, ECHR 2000 X), conjugal visits (the above-cited Aliev case) and attending funerals (the above-cited Ploski case).

However, in the present case, the Court considers that the impugned restriction does not limit a general entitlement already in place in a prison environment (for example, controlling the mechanics of contact with family and visits) but rather concerns the State's refusal to take steps exceptionally to allow something (the possibility of the begetting of children by prisoners) not already an existing general right or entitlement. The Court considers therefore that the applicants effectively complained that, in refusing access to artificial insemination facilities, the State failed to fulfil a positive obligation to secure respect for private or family life.

The requirements of the notion of ‘respect’ for private and family life in Article 8 are not clear-cut, especially as far as the positive obligations inherent in that concept are concerned, and vary considerably from case to case having regard, notably, to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of the State's priorities and resources. These considerations are particularly relevant in the present case. The issues raised by the case touch on an area where there is little common ground amongst the member States of the Council of Europe. The present applicants did not suggest that there was any European consensus in favour of granting artificial insemination facilities to prisoners and indeed were unable to point to any other Contracting State which affords prisoners access to such facilities. Nor can the Court discern in this regard any ‘evolving convergence as to the standards to be achieved’ (Christine Goodwin v. the United Kingdom[GC], no.28957/95, § 74, ECHR 2002 VI). It is true that it appears that more than half the Contracting States allow for conjugal visits for prisoners, subject to a variety of different restrictions, a measure which may be seen as obviating the need for the authorities to provide in addition facilities for artificial insemination. However, the Court notes that, while it has expressed its approval for the movement in several European countries to grant conjugal visits, it has not yet interpreted the Convention as requiring Contracting States to make provision for such visits (see the above-cited Aliev judgment, at § 188). Accordingly, this is an area in which the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.

In determining the existence and scope of any positive obligation, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The aims mentioned in the second paragraph of Article 8 ‘may’ have ‘a certain relevance’ only. Moreover, any such obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (Rees v. the United Kingdom, judgment of 17 October 1986, Series A no. 106, § 37, Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, § 42; Sheffield and Horsham v. the United Kingdom, judgment of 30 July 1998, Reports of Judgments and Decisions 1998 V, § 52; Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116; and Appleby and Others v. the United Kingdom, no. 44306/98, § 40, ECHR 2003 VI).

The Court notes that, as a matter of general policy, requests by prisoners in the United Kingdom for artificial insemination are only granted by the authorities in exceptional circumstances. In reaching a decision as to whether such circumstances exist in any individual case, particular attention is given by the authorities to a number of general considerations which are set out in the Secretary of State's letter of 28 May 2003. As explained by the respondent Government, and as reflected in the judgments of the Court of Appeal in the above-cited Mellor case and in the present case, two principal aims underlie the policy: the maintenance of public confidence in the penal system and the welfare of any child conceived as a result of artificial insemination and, therefore, the general interests of society as a whole.

As to the former aim, while reiterating that there is no place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion (the above-cited Hirst judgment, at § 70), the Court nevertheless accepts that the maintaining of public confidence in the penal system has a legitimate role to play in the development of penal policy within prisons. The Court also considers valid that, in developing and applying the policy, the authorities retained certain criteria which concerned the interests of any child to be conceived. The very object of a request for artificial insemination is the conception of a child and the State has positive obligations to ensure the effective protection and the moral and material welfare of children.

As to the policy itself, the Court attaches particular importance to the fact that, in contrast to the law which was in issue in the Hirst case, it did not operate to impose a blanket restriction on a prisoner's access to artificial insemination facilities, without any consideration of individual circumstances. On the contrary, as was explained in the letter of the Secretary of State, requests for artificial insemination were carefully considered on individual merit and according to the various criteria set out in the letter. Having examined these criteria, the Court does not find them to be arbitrary or not reasonably related to the underlying aims of the policy. Nor, on the material before the Court, can it be suggested that the examination of an individual case in the light of the considerations set out in the letter is merely theoretical or illusory: the unchallenged evidence before the Court of Appeal was that the Secretary of State had already allowed access to insemination facilities in certain cases, while two applications were struck out by the former Commission when artificial insemination facilities were granted to the applicants (P.G. v. the United Kingdom, no. 10822/84, Commission decision of 7 May 1987; and G. and R.S. v. the United Kingdom, no. 17142/90, Commission decision of 10 July 1991, both unpublished).

The question remains whether the application of the criteria to refuse access to artificial insemination facilities in the present case upset the fair balance which must be preserved.

The Court has had regard, on the one hand, to the difficult situation in which the applicants find themselves. Artificial insemination remains the only realistic hope of having a child together, since the second applicant will be 51 by the earliest release date of the first applicant. Further, as pointed out by the applicants, the requested facilities would not be as onerous for the authorities as those required for conjugal visits and the applicants indicated their willingness to bear the costs of the procedure. The second applicant, moreover, maintained that she had sufficient resources to care for any child born as a result of artificial insemination.

On the other hand, the Court notes that careful consideration was given by the Secretary of State to the individual circumstances of the present applicants, including the unlikelihood of conception after the date of the first applicant's release from prison, before concluding that these factors were outweighed by the other factors to which reference was made — in particular, the nature and gravity of the first applicant's crime and the welfare of any child who might be conceived, in the light of the prolonged absence of the father for an important part of its childhood years and the apparent lack of sufficient material provision and immediate support network in place for the mother and child. The Court further notes that the decision of the Secretary of State was examined by the High Court and the Court of Appeal which found not only that the policy was rational and lawful but that, in applying the policy in the circumstances of the present case, the decision of the Secretary of State to refuse the facilities was neither unreasonable nor disproportionate.

In these circumstances and having regard to the wide margin of appreciation afforded to the national authorities, the Court finds that it has not been shown that the decision to refuse facilities for artificial insemination in the present case was arbitrary or unreasonable or that it failed to strike a fair balance between the competing interests. Accordingly, there is in the present case no appearance of a failure to respect the applicants' rights to private and family life.

There has been no violation therefore of Article 8 of the Convention.