CASE OF DICKSON v. THE UNITED KINGDOM
Violation of Art. 8;Not necessary to examine Art. 12;Non-pecuniary damage - financial award;Costs and expenses partial award
Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Javier Borrego Borrego;John Hedigan;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi
9. The applicants were born in 1972 and 1958 respectively. The first applicant is in prison and the second applicant lives in Hull. 10. In 1994 the first applicant was convicted of murder (kicking a drunken man to death) and sentenced to life imprisonment with a tariff of fifteen years. His earliest expected release date is 2009. He has no children. 11. In 1999 he met the second applicant, while she was also imprisoned, through a prison pen-pal network. She has since been released. In 2001 the applicants married. The second applicant already had three children from other relationships. 12. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. They relied on the length of their relationship and the fact that, given the first applicant’s earliest release date and the second applicant’s age, it was unlikely that they would be able to have a child together without the use of artificial insemination facilities. 13. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the Policy”): “Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations: – whether the provision of artificial insemination facilities is the only means by which conception is likely to occur – whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent – 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 artificial insemination – whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release – whether there is any 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 expect to be without a father or mother – whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.” He then gave his reasons for refusal in the present case: “... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release. Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small. It is noted that Mrs Dickson has three children from an earlier relationship. In the light of your wife’s age, the Minister has looked with very great care at both you and your wife’s circumstances, ... The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially. He also recognises the commitment which you and your wife have shown to one another. However, he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life. A reasoned and objective assessment cannot be made as to whether your relationship will subsist after your release. Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived. In addition, there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived. It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years. While recognising the progress which you have made in addressing your offending behaviour, the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour, the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment. It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison.” 14. The applicants sought leave to apply for judicial review of the Secretary of State’s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies (application no. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal. 15. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533. He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips, Master of the Rolls, in the Mellor case (see paragraphs 23-26 below) and commented: “... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2 ... Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State’s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...” He then noted that on occasions the Secretary of State had “dis-applied” the Policy when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances. 16. Auld LJ then applied the Policy to the present case: “To the extent that [the applicants have] suggested that [the] Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State’s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.” 17. The other judges also relied on the judgment in Mellor. Mance LJ said the following: “The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v. the United Kingdom [no. 8186/78, Commission’s report of 10 July 1980, DR 24, pp. 81-82, §§ 61-62], also recognised the potential relevance of more general considerations of public interest.” 18. On 19 December 2006 the first applicant was transferred to the open side of another prison as a Category D prisoner. In principle, he was eligible for unescorted home leave after six months should he retain his Category D status (Rule 9 of the Prison Rules 1999, as implemented by Chapter 4.3 – “Temporary Release for Life Sentence Prisoners” – of Prison Service Order 6300). 19. The Secretary of State is empowered to make rules for the management of prisons by section 47 of the Prison Act 1952, the relevant parts of which provide as follows: “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 ...” 20. The relevant rules are the Prison Rules 1999 (SI 1999 No. 728). Rule 4 provides as follows: “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.” 21. The Policy 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 years old. 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. 22. They sought leave to apply for judicial review of the Policy itself, rather than its application to their case, arguing that it was an unjustified interference with their Article 8 rights. They distinguished the Policy from that concerning conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The government argued that the Policy was justified in that (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single-parent families. The High Court refused leave and the applicants appealed. 23. The Court of Appeal (Lord Phillips delivering the main judgment) noted that the Secretary of State’s decision pre-dated the incorporation of the Convention into English law and continued: “It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant’s case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either.” 24. Having examined relevant Commission jurisprudence (no. 6564/74, Commission decision of 21 May 1975, Decisions and Reports (DR) 2, p. 105; no. 8166/78, Commission decision of 3 October 1978, DR 13, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission’s report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission’s report of 10 July 1980, DR 24, p. 72; and E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 1997, DR 91-A, p. 61), Lord Phillips summarised five Convention principles he considered thereby established: “(i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights. (ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12. (iii) This restriction is ordinarily justifiable under the provisions of Article 8(2). (iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right. (v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.” 25. Lord Phillips went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances. As to the first justification, he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and, indeed, that that statement did no more than restate the Policy in that it indicated that it was a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”. On the second justification, he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison. Lord Phillips agreed that public perception was a legitimate element of penal policy: “Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. ... When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.” As regards the third justification which concerned the alleged disadvantage of single-parent families, he commented: “I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.” 26. Lord Phillips then concluded: “For those reasons [the Mellors] failed to make out [the] case that the [Policy] ... is irrational. [The Mellors] accepted that there were in this case no exceptional circumstances, and [they were] right to do so. It follows that the question of whether each of the six general considerations set out in [the Secretary of State’s] letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether. For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.” 27. Responsibility for making artificial insemination arrangements is with the health-care department in the relevant prison in consultation with the local primary care trust. Since the level of health-care provision varies from prison to prison, it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose. The prisoner would be expected to meet any costs incurred. 28. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe’s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release. 29. Article 10(3) of the International Covenant on Civil and Political Rights (“the ICCPR”) provides that the “penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. The General Comment of the Human Rights Committee on Article 10 further states that “no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner”. 30. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles: “57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation. 58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life. 59. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.” 31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that: “The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.” The latest version of those Rules adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with three principles: “Rule 2: Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. ... Rule 5: Life in prison shall approximate as closely as possible the positive aspects of life in the community. Rule 6: All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems – “the CDPC”) noted that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights: in fact restrictions should be as few as possible. Rule 5, the commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”. 32. The first section of Part VIII of the 2006 Rules is entitled “Objective of the regime for sentenced prisoners” and provides, inter alia: “102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” In these respects, the CDPC commentary explains that Rule 102: “... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism. ... The new Rule is in line with the requirements of key international instruments including Article 10(3) of the [ICCPR], ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term, “rehabilitation”, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives. In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.” 33. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community. 34. The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences. 35. The preamble to Recommendation (2003)23 on the management by prison administrations of life-sentence and other long-term prisoners provides that: “ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other;” The aims of the management of long-term prisoners in paragraph 2 of the Recommendation included the following: “– to ensure that prisons are safe and secure places for these prisoners ...; – to counteract the damaging effects of life and long-term imprisonment; – to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.” The recommendation also outlined five linked principles (paragraphs 38) for the management of long-term prisoners: – account to be taken of the personal characteristics of prisoners (individualisation principle); – prison life to be arranged so as to approximate as closely as possible to the realities of life in the community (normalisation principle); – the opportunity to be accorded to exercise personal responsibility in daily prison life (responsibility principle); – a clear distinction should be made between the risks posed by life and long-term prisoners to themselves, to the external community, to other prisoners and to those working or visiting the prison (security and safety principle); – prisoners should not be segregated on the basis of their sentence (nonsegregation principle); and – the planning of an individual prisoner’s long-term sentence should aim at securing progressive movement through the prison system (progression principle). The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system “from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community”. There should also be participation in prison activities that “increase the chances of a successful resettlement after release” and conditions and supervision measures that are “conducive to a law-abiding life and adjustment in the community after conditional release”. 36. The second relevant Committee of Ministers’ recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that “research has shown that detention often has adverse effects and fails to rehabilitate offenders”. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as: “– the payment of compensation or the making of reparation to victims; – entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime; – working or following some other approved occupational activity, for instance, education or vocational training; – participation in personal development programmes; and – a prohibition on residing in, or visiting, certain places.”