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You are here: BAILII >> Databases >> European Court of Human Rights >> DICKSON v. THE UNITED KINGDOM - 44362/04  ECHR 1050 (4 December 2007)
Cite as:  3 FCR 877, 46 EHRR 41,  Fam Law 211, 24 BHRC 19,  ECHR 1050,  Prison LR 334, (2008) 46 EHRR 41,  1 FLR 1315
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CASE OF DICKSON v. THE UNITED KINGDOM
(Application no. 44362/04)
4 December 2007
This judgment is final but may be subject to editorial revision.
In the case of Dickson v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Wildhaber,
Sir Nicolas Bratza,
Mr B.M. Zupančič,
Mr P. Lorenzen,
Mrs F. Tulkens,
Mr I. Cabral Barreto,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr J. Hedigan,
Mr A.B. Baka,
Mrs S. Botoucharova,
Mrs A. Mularoni,
Mrs A. Gyulumyan,
Mr K. Hajiyev,
Mr E. Myjer,
Mrs I. Berro-Lefèvre, judges,
and Mr V. Berger, Jurisconsult,
Having deliberated in private on 10 January and 17 October 2007,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Mr J. Grainger, Agent,
Mr D. Perry, QC, Counsel,
Mr A. Dodsworth, Adviser;
(b) for the applicants
Mr E. Abrahamson, Solicitor,
Ms F. Krause, Counsel.
The Court heard addresses by Mr Perry and Ms Krause.
I. THE CIRCUMSTANCES OF THE CASE
“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 your 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.”
“... 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.
“To the extent that [the applicants have] suggested that he 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.”
“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 App No. 8186/78 at paragraphs 61 to 62, also recognised the potential relevance of more general considerations of public interest.”
II. RELEVANT LAW AND PRACTICE
A. Prison Rules
“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...”
(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.”
B. R (Mellor) v Secretary of State for the Home Department  3 WLR 533
“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.
“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.”
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.”
“For those reasons [the Mellors] failed to make out the [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.”
C. Procedure for artificial insemination in prisons
D. The objectives of a sentence of imprisonment
1. Relevant international human rights' instruments
“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 utilize 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.”
2. European Prison Rules 1987 and 2006
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 –“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 so that 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”.
“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.”
“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 3 8) 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);
- one must distinguish between the risks posed by life and long-term prisoners to themselves, to the external community, to other prisoners and to other people working or visiting the prison (security and safety principle);
- prisoners should not be segregated on the basis of sentence (non segregation 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”.
“- 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.”
I. ALLEGED VIOLATION OF ARTICLES 8 AND 12 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, ... .
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.”
“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 that right.”
A. The Chamber judgment
B. The applicants' submissions
1. Article 8 of the Convention
2. Article 12 of the Convention
C. The Government's submissions
1. Article 8 of the Convention
While the Chamber recognised the “well established” principle that, liberty apart, prisoners continued to enjoy all Convention rights including the right to respect for private and family life (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, BAILII:  ECHR 681 ), it had also accepted that imprisonment inevitably and necessarily involved some limitation on an individual's rights. The Chamber had also accepted that the case concerned the fulfilment of a positive obligation to which a wide margin of appreciation applied and that, in the overall balancing of individual and public interests required, the public legitimate aims were the maintenance of public confidence in the penal system and the interests of any child conceived and, thus, those of society as a whole. The Policy, and its application in the applicants' case, was not disproportionate to those aims.
It was not a blanket Policy but one that enabled the examination of the merits of each case taking into account Convention principles. The statistics demonstrated that the individual assessment was genuine: 28 applications for artificial insemination facilities had been made since 1996, 12 were not pursued, 1 was withdrawn as the relationship broke down, 1 applicant was released on parole and 2 were pending. Of the remaining 12 applications, 3 were granted and 9 were refused.
The Policy's justification was to be found in three principles: losing the opportunity to beget children was part and parcel of the deprivation of liberty and an ordinary consequence of imprisonment; public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners to conceive children (in that latter context, the nature and gravity of the crime was relevant); and the inevitable absence of one parent, including that parents financial and other support, for a long period would have negative consequences for the child and for society as a whole. This latter point was indeed a complex and controversial one underlining why the State authorities were best placed to make this assessment. It was legitimate that the State considered implications for any children conceived so that one of the aims of the Policy was to limit the grant of artificial insemination facilities to those who could reasonably be expected to be released into a stable family setting and play a parental role. Indeed, the State had an obligation to ensure effective protection and the moral and material welfare of children.
2. Article 12 of the Convention
D. The Court's assessment of the complaint under Article 8
1. Applicability of Article 8
2. Relevant general principles
“69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention (see, among many authorities, Kalashnikov v. Russia, no. 47095/99, ECHR 2002 VI; Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003 II, BAILII:  ECHR 62 ); they continue to enjoy the right to respect for family life (Ploski v. Poland, no. 26761/95, judgment of 12 November 2002, BAILII:  ECHR 735; X. v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 113), the right to freedom of expression (Yankov v. Bulgaria, no. 39084/97, §§ 126-145, ECHR 2003 XII, BAILII:  ECHR 685, T. v. the United Kingdom, no. 8231/78, Commission report of 12 October 1983, DR 49, p. 5, §§ 44-84), the right to practise their religion (Poltoratskiy v. Ukraine, no. 38812/97, §§ 167-171, ECHR 2003 V, BAILII:  ECHR 216 ), the right of effective access to a lawyer or to court for the purposes of Article 6 (Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A, no. 80 BAILII:  ECHR 8 ; Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18, BAILII:  ECHR 1 ), the right to respect for correspondence (Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, BAILII:  ECHR 5) and the right to marry (Hamer v. the United Kingdom, no. 7114/75, Commission report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission report of 10 July 1980, DR 24, p. 72). Any restrictions on these other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Silver, cited above, §§ 99-105, where broad restrictions on the right of prisoners to correspond fell foul of Article 8 but stopping of specific letters, containing threats or other objectionable references were justifiable in the interests of the prevention of disorder or crime).
70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
71. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual's capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations (see, for example, no. 6573/74, cited above; and, mutatis mutandis, Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187 BAILII:  ECHR 8, where the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic traits, to stand for election). The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. ...”
3. Negative or positive obligations
4. The conflicting individual and public interests
Whilst the inability to beget a child might be a consequence of imprisonment, it is not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the State.
The Court, as the Chamber, reiterates 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 (Hirst, cited above § 70). However, the Court could accept, as did the Chamber, that the maintaining of public confidence in the penal system has a role to play in the development of penal policy. The Government also appeared to maintain that the restriction, of itself, contributed to the overall punitive objective of imprisonment. However, and while accepting that punishment remains one of the aims of imprisonment, the Court would also underline the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence (see paragraphs 28-36 above).
The Court is prepared to accept as legitimate, for the purposes of the second paragraph of Article 8, that the authorities, when developing and applying the Policy, should concern themselves, as a matter of principle, with the welfare of any child: conception of a child was the very object of the exercise. Moreover, the State has a positive obligations to ensure the effective protection of children (L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998 III, § 36, BAILII:  ECHR 49; Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998 VIII, § 115-116, BAILII:  ECHR 101; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 V, BAILII:  ECHR 333 ). However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released.
5. Balancing the conflicting interests and the margin of appreciation
Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy: the authorities' direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. In such a case, the Court would generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation”. There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights (Evans, cited above, § 77).
“Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.”
In particular, and having regard to the judgment of Lord Phillips MR in the Mellor case and of Auld LJ in the present case, the Policy placed an inordinately high “exceptionality” burden on the applicants when requesting artificial insemination facilities (see paragraphs 13, 15-17 and 23-26 above). They had to demonstrate, in the first place, as a condition precedent to the application of the Policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the “starting point”). Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were “exceptional” within the meaning of the remaining criteria of the Policy (“the finishing point”). The Court considers that even if the applicants' Article 8 complaint was before the Secretary of State and the Court of Appeal, the Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention (see, mutatis mutandis, Smith and Grady, cited above § 138, BAILII:  ECHR 384).
E. The Court's assessment of the complaint under Article 12
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
The Government submitted that there was no specific evidence of distress over and above the normal concern of any party to litigation and, further, that the submission about the second applicant's reduced chances of conceiving was speculative. In the Government's view, a finding of a violation would constitute sufficient just satisfaction.
B. Costs and expenses
The Government maintained that the hourly rate of 250 pounds sterling (for both the barrister and solicitor) was excessive, particularly as neither was based in London. Any nationally approved fee levels were not relevant in this regard and the Court should allow an hourly rate of no more than half the above-noted amount. In the Government's view, the number of hours for which fees were claimed was also excessive, particularly since the solicitor appeared in some respects to duplicate work done by counsel. The Court should, the Government concluded, award no more than 8,000 pounds sterling in total in respect of legal costs and expenses.
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 21,000 (twenty-one thousand euros) in costs and expenses, less EUR 2,148.09 (two thousand one hundred and forty-eight euros and nine cents) in legal aid paid by the Council of Europe and inclusive of any tax that may be chargeable, which payments are to be converted into pounds sterling at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 December 2007.
Vincent Berger Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following concurring and dissenting opinions are annexed to this judgment:
(a) Concurring opinion of Sir Nicolas Bratza;
(b) Joint dissenting opinion of Mr Wildhaber, Mr Zupančič, Mr Jungwiert, Mrs Gyulumyan and Mr Myjer.
CONCURRING OPINION OF JUDGE Sir Nicolas BRATZA
An unsatisfactory feature of Protocol No. 11 to the Convention, which ushered in the permanent Court in Strasbourg, is that a national judge who has already been party to a judgment of a Chamber in a case brought against his or her State is not only entitled but, in practice, required, to sit and vote again if the case is referred to the Grand Chamber. In his Partly Dissenting Opinion in the case of Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-... , BAILII: ( ECHR 873), Judge Costa described the position of the national judge in such circumstances as “disconcerting”, the judge having to decide whether to adhere to his or her initial opinion on the case or “with the benefit of hindsight [to] depart from or even overturn [that] opinion”.
Where the case has already been fully argued and discussed at the Chamber level and no new information or arguments have been advanced before the Grand Chamber, national judges have, unsurprisingly, normally adhered to their previous opinion, although not necessarily to the precise reasoning which led to that opinion in the Chamber.
In the present case, the material and arguments before the Grand Chamber did not differ in any significant respect from those before the Chamber. I have, nevertheless concluded, on further reflection, that my previous view on the main issue was wrong and I have voted with the majority in finding that the applicants' rights under Article 8 were violated.
Unlike the Chamber, the Grand Chamber has not found it necessary to determine whether the case should more appropriately be analysed as one concerning the State's positive or negative obligations under the Article. However, it is common ground that, whatever the nature of the obligation, the key question is whether a fair balance was struck between the competing public and private interests involved.
In the majority judgment to which I was a party, the Chamber found that the Policy of the Secretary of State, as set out in the letter of 28 May 2003, as well as its application in the present case in refusing the grant of artificial insemination facilities, not only served a legitimate aim but struck a fair balance between the rival interests. The focus of the Grand Chamber has been primarily on the compatibility with Article 8 of the Policy itself. The Chamber's conclusion that the Policy was compatible was founded principally on the fact that it did not operate as a blanket ban on the grant of artificial insemination facilities but allowed consideration of the circumstances of each application for such facilities according to criteria which were found to be neither arbitrary nor unreasonable. In this respect the case differed from that of Hirst (Hirst v. the United Kingdom (no. 2)
[GC], no. 74025/01, ECHR 2005-..., BAILII:  ECHR 681), which concerned a general exclusion of serving prisoners from the right to vote. That such individual assessment was not merely theoretical or illusory was found by the Chamber to be confirmed by the fact that access to facilities had in fact been granted in certain cases.
After further deliberation on the case, I have been persuaded, for reasons more fully developed in the majority opinion in the Grand Chamber, that a fair balance was not preserved by the Policy.
As was noted by the Court of Appeal in the case of (R) Mellor v. Secretary of State for the Home Department  3 WLR 533, the Policy statement reflected a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”. While it is the case that the Policy did not wholly exclude serving prisoners, even life prisoners, from the opportunity of obtaining access to artificial insemination facilities, I consider that the Policy was unduly weighted against the individual prisoner requesting such facilities, by placing on him the burden of showing not merely that, without such facilities, conception might be prevented altogether, but that there were “exceptional circumstances” in his case which justified a departure from the general rule against the grant of such facilities.
Even if the philosophy underlying the Policy can be considered to be compatible with the well-established principle that, liberty apart, prisoners continue to enjoy all Convention rights including the right to respect for private and family life, in common with the majority of the Court, I consider that, in imposing such a burden on a prisoner, the Policy did not allow for a fair balance to be struck between the competing public and private interests involved.
JOINT DISSENTING OPINION OF JUDGES WILDHABER, ZUPANČIČ, JUNGWIERT, GYULUMYAN AND MYJER
In the instant case, the first applicant (Kirk Dickson), born in 1972, was in prison serving a life sentence for murder. His earliest full release date was 2009. While they were both in prison, he met (in 1999) and married (in 2001) the second applicant (Lorraine Dickson), born in 1958, a mother of three children from different relationships. Their request for artificial insemination facilities was refused definitively in 2004. The Chamber found no violation of Articles 8 and 12, whereas the majority of the Grand Chamber now finds a violation of Article 8. To our regret, we have to dissent.
The majority of the Grand Chamber finds Article 8 applicable. It discusses the adequacy of the legal basis for a restriction only indirectly, but since the judgment focuses on the proportionality of restrictions in a democratic society, one must assume that the legal basis was found to be adequate. We agree, although we find unhelpful the obiter dictum in paragraph 83 of the judgment suggesting that the Policy should have been “embodied in primary legislation”. We do not think that the problem of artificial insemination facilities in prisons was so evident or burning that direct action by Parliament was needed.
We accept that imprisonment is a deprivation of liberty within the scope of Article 5, so that prisoners retain their fundamental rights, except for restrictions which are inherent in, or necessarily concomitant to, the deprivation of liberty itself (see paragraphs 31 and 65). And that is the crux of our case.
It is correctly noted (in paragraph 28) that the objectives of imprisonment “include punishment, deterrence, protection of the public and rehabilitation”.
As the judgment points out, a growing number of Contracting Parties have made possible conjugal visits in prisons, subject to a variety of different restrictions (paragraph 81). Nevertheless, the Court's case-law has not interpreted Articles 8 and 12 as requiring Contracting States to make provision for conjugal visits in prisons. We fail to see how it can be argued that there is no right to conjugal visits in prisons, but that there is instead a right for the provision of artificial insemination facilities in prisons (this interpretation results implicitly from paragraphs 67-68, 74, 81 and 91). Not only is this contradictory. It also plays down the wide margin of appreciation which States enjoy (and should enjoy) in this field.
The margin of appreciation of Member States is wider where there is no consensus within the States and where no core guarantees are restricted. States have direct knowledge of their society and its needs, which the Court does not have. Where they provide for an adequate legal basis, where the legal restrictions serve a legitimate aim and where there is room to balance different interests, the margin of appreciation of States should be recognized.
This is so in the instant case. The Government's Policy allowed for the balancing of interests and was not a blanket one. The British courts did balance the various interests. We fail to see how the majority of the Grand Chamber can claim that there was no weighing of the “relevant competing individual and public interests” (paragraph 83).
To the contrary, in our view the majority did not weigh several interests that ought to have deserved consideration. Thus the Court might have wished to discuss the very low chances of a positive outcome of in vitro fertilization of women aged 45 (see Bradley J. Van Voorhis, “In Vitro Fertilization”, New England Journal of Medicine 2007 356: 4 pp. 379-386). The Court also fails to address the question whether all sorts of couples (for example, a man in prison and the woman outside, a woman in prison and the man outside, a homosexual couple with one of the partners in prison and the other outside) may request artificial insemination facilities for prisoners. We are of the opinion that in this respect too States should enjoy an important margin of appreciation.
In conclusion, in the specific circumstances of the case (the couple established a pen-pal relation while both were serving prison sentences; the couple had never lived together; there was a 14-year age difference between them; the man had a violent background; the woman was at an age where natural or artificial procreation was hardly possible and in any case risky; and any child which might be conceived would be without the presence of a father for an important part of his or her childhood years), it could not be said that the British authorities had acted arbitrarily or had neglected the welfare of the child which would be born.