R (Mellor) v Secretary of State for the Home Department

Lawful imprisonment may restrict a prisoner’s rights to family life and to found a family as an intended consequence of the penal regime. Such restrictions remain subject to proportionality. Exceptional circumstances may therefore require arrangements which mitigate the ordinary effects of imprisonment.

Neither the Convention nor domestic law ordinarily entitles a prisoner to facilities for artificially inseminating a spouse. A policy permitting such facilities only in exceptional circumstances is rational. Penal policy may legitimately consider justified public concern, ethical consequences and the welfare implications of intentionally creating a family in which one parent will remain imprisoned. It is rational to ask whether refusing facilities would prevent, rather than merely delay, the founding of a family.

A life prisoner and his wife wished to have a child while he remained in custody. The Secretary of State refused to facilitate artificial insemination under a policy which granted such facilities only in exceptional circumstances. The refusal reflected the absence of medical need and concern about a relationship formed during imprisonment.

Forbes J dismissed the prisoner’s application for judicial review. On appeal, the prisoner contended that providing semen was compatible with prison administration and that refusing facilities unjustifiably interfered with his rights to family life and to found a family. The central issues were whether those rights included artificial insemination while imprisoned and whether the exceptional-circumstances policy was unlawful or irrational.

1. The appeal was dismissed unanimously. Lord Phillips MR delivered the judgment, with which Peter Gibson and Latham LJJ agreed. The refusal of artificial-insemination facilities was neither contrary to the Convention, unlawful nor irrational.

2. Lawful imprisonment ordinarily and justifiably interferes with family life and the opportunity to found a family. The qualifications recognised by article 8(2) also inform the exercise of article 12 rights. The Strasbourg decisions did not establish that a prisoner has a right to provide semen for artificial insemination. In particular, E.L.H. and P.B.H. v United Kingdom (1997) 91A DR61 supported the conclusion that such a right had not been recognised.

3. The restriction was not justified solely by the practical requirements of prison security. Deprivation of some rights and pleasures is an intended part of imprisonment’s punitive and deterrent purposes. The domestic authorities, including Raymond v Honey [1983] AC 1 and R v Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C.115, nevertheless required proportionality. Exceptional circumstances may require the ordinary consequences of imprisonment to yield where their effect upon a fundamental right would be disproportionate.

4. The Secretary of State’s policy of facilitating artificial insemination only in exceptional circumstances was rational. It was legitimate for penal policy to consider justified public concern, the ethical consequences of facilitating conception and the disadvantages that may arise where a child is intentionally conceived while one parent remains imprisoned. Public acceptability and confidence in the criminal justice system could properly form part of penal policy.

5. No exceptional circumstances were established. It was rational to begin by asking whether refusal would prevent the founding of a family altogether, rather than merely postpone it. The wife’s age and medical evidence did not show that delay until temporary release or release from custody would probably prevent conception.

1. Court of Appeal: By [2001] EWCA Civ 472, unanimously dismissed the prisoner’s appeal and upheld the refusal of judicial review. Leave to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Forbes J dismissed the application for judicial review on 31 July 2000. No citation is stated in the judgment.