SECRETARY OF STATE FOR HOME DEPARTMENT Ex parte MELLOR, R v. [2001] EWCA Civ 472

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

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

"This is a rather unusual request but it does not fall within the Human Fertilisation and Embryology Act of 1990, and therefore from a legal point of view there is no impediment to us performing this therapy. I would refer such a case to the Hospital's independent Ethics Committee for their opinion as to whether we should proceed. There is a question about this lady's request being based on her decline in fertility with advancing age. Unlike the male whose fertility tends to decline much more slowly, a female's fertility declines slowly in her fourth decade, and more rapidly over the age of 35. Over the age of 40, female fertility drops quite significantly and most women have reached sterility by the late fifth decade. ... As far as this particular woman is concerned, I believe she is in her mid 20's, and I would therefore suggest, for the next 7 or 8 years at least her fertility should not decline so much so that she would require medical intervention. It is my opinion therefore that advancing age in this particular female's case is not a consideration when considering her fertility. ... In summary, this is indeed an unusual request and any treatment would be subject to Ethics Committee approval. In my opinion, the female's age in this case is not a significant factor as to why they should have treatment sooner rather than later, but she should expect a decline in her natural fertility in the fourth decade..."

"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."

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

"3. It is the policy of the Respondent that the grant of facilities for AI to prisoners and their partners is made only in exceptional circumstances. Each case is considered on its own facts, but the Prison Service has developed a set of general considerations which are looked at, along with other relevant factors, when applications are received, but which are not treated as rigid criteria. They allow for the consideration of other exceptional circumstances which may be put forward. They apply equally to male and female prisoners. Those general considerations are as follows:- (a) Whether the provision of AI facilities is the only means by which conception is likely to occur; (b) Whether the prisoner's expected date of release is neither so near that delay would not be excessive nor so distant that he or she would be unable to assume the responsibilities of a parent; (c) Whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI; (d) Whether the couple were in a well- established and stable relationship before imprisonment which is likely to subsist after the prisoner's release; (e) Whether there is evidence to suggest that the couple's domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might be expected to be without a father or mother; (f) Whether, having regard to the prisoner's history and antecedents and other relevant factors, there is evidence to suggest that it would not be in the public interest to provide AI facilities in this particular case.... 5. The cautious approach which is taken to requests for AI made by prisoners has been adopted for the following reasons: (a) It is an explicit consequence of imprisonment that prisoners should not have the opportunity to beget children whilst serving their sentences, until they come to a stage where they are allowed to take leave on temporary licence; (b) Serious and justified public concern would be likely if prisoners continued to have the opportunity to conceive children while serving sentences; (c) That whilst many children are brought up successfully by single parents, the evidence suggests that children do better when they can stay in close contact with both parents. The creation of what would inevitably be one parent families because one partner was serving a sentence of imprisonment seems likely to be disadvantageous to society as a whole, as well as not being in the interests of the welfare of the child. 6. It is thus the aim of the policy to limit the grant of AI facilities to those who can reasonably be expected to be released into a stable family setting, and to play a parental role in bringing up any child conceived by AI. Account must also be taken of public interest considerations. It is also the intention of the policy that AI should only be granted where it is necessary to facilitate conception (for example, in circumstances where for medical reasons the couple could not conceive naturally or where the woman's medical condition indicates that there is only a small window of opportunity left to the couple in which to conceive, so that conception would be unlikely following release) in order to avoid AI being used simply to circumvent the normal consequences of imprisonment. Any prisoner seeking AI facilities is expected to finance the cost of treatment. ... 12. The Applicant's request for AI facilities was refused taking into account the general criteria, and for the following reasons: a) there was no medical need for AI in order for the Applicant and his wife to conceive; b) there was some concern about the stability of their relationship, given that it did not exist prior to the Applicant's imprisonment, and had not been tested under normal circumstances. 13. In reaching that decision, the Respondent fully took into account the representations made by the Applicant and his wife, but reached the view that, on balance, and considering all relevant factors, including the general considerations set out in the Prison Service policy, the request ought not to be granted. 14. The decision taken in the Applicant's case is not a "once and for all decision"

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

"Outside Contacts (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation."

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

"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."

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

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

"This is, essentially, a right to form a legal relationship, to acquire a status. Its exercise by prisoners involves no general threat to prison security or good order comparable to those referred to by the Commission in the above-mentioned decisions. In particular a marriage ceremony can take place under the supervision of the prison authorities. ...Personal liberty is not a necessary pre-condition to the exercise of the right to marry. The practice of States in allowing prisoners to marry, either within prison or on temporary release under escort, shows that no specially onerous or complex arrangements are necessary. The exercise of the right, particularly within a prison, does not, as the Commission has already pointed out, involve the prisoner escaping from the supervision and control of the prison authorities. ...In considering whether the imposition of such a delay breached the applicant's right to marry, the Commission does not regard it as relevant that he could not have cohabited with his wife or consummated his marriage whilst serving his sentence. The essence of the right to marry, in the Commission's opinion, is the formation of a legally binding association between a man and a woman. It is for them to decide whether or not they wish to enter such an association in circumstances where they cannot cohabit."

"The Commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating `conjugal visits'. However, the Commission recalls its case-law to the effect that, although the refusal of such visits constitutes an interference with the right to respect for one's family life under Article 8 of the Convention, for the present time it must be regarded as justified for the prevention of disorder or crime under the second paragraph of that provision. Moreover, according to the same case-law, an interference with family life which is justified under Article 8 para. 2 of the Convention cannot at the same time constitute a violation of Article 12. The Commission considers that the same conclusions should be reached under Articles 8 and 12 of the Convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners. The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the Convention is disclosed. The applicants complain of discrimination in the enjoyment of their rights under Articles 3, 8 and 12 of the Convention, contrary to Article 14 thereof. Insofar as the applicants can be deemed to complain that they have less possibilities to procreate than persons who are not detained, the Commission considers that the difference in treatment in question is the direct result of a lawfully imposed prison sentence and, as a result, has a reasonable and objective justification. Moreover, it has not been shown that there exists no reasonable proportionality between the means employed and the aim sought to be realised, since the applicants have the possibility to apply for artificial insemination facilities. It follows that no appearance of a violation of Article 14 of the Convention taken in conjunction with Articles 3, 8 and 12 is disclosed."

"...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:"

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

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

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

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

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

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