Danny Walker, R (on the application of) v Secretary Of State for Justice

A prisoner has no unrestricted right to obtain fertility treatment at a chosen time and by a chosen method. A decision under a policy governing access to treatment may involve a broad domestic margin of discretion, provided the decision-maker acts fairly and lawfully. The decision-maker may rely on reasonable predictions about future accommodation, risk and child welfare, and need not investigate every matter suggested by the claimant where the inquiry was rationally sufficient. Article 8 is engaged by a couple’s wish to conceive, but restricting access may be justified by child-welfare concerns, public safety and public confidence in the justice system. Where an alternative treatment remains realistically available, the interference may be limited and proportionate.

The claimant, a serving prisoner, sought judicial review of the defendant’s refusal to facilitate IVF treatment for him and his partner. He sought to quash the decision of 31 October 2022 and a declaration concerning his rights under Article 8 of the European Convention on Human Rights.

He alleged irrationality, procedural unfairness and breach of the duty of reasonable inquiry associated with Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, and disproportionate interference with Article 8. Permission had previously been refused on the papers. On renewal, the central questions were whether the defendant had rationally assessed alternative treatment, future accommodation and child welfare; whether further consultation or inquiry was required; and whether the restriction was proportionate.

1. Renewed application dismissed. None of the three grounds was arguable.
2. The Human Fertilisation and Embryology Act 1990 required a licensed clinic, before providing treatment, to take account of the welfare of any child who might be born and of any other affected child. The defendant was therefore entitled to consider child-welfare issues within the policy framework.
3. The defendant rationally read the clinic’s letter as indicating that egg freezing remained a viable option. The previous failure of frozen eggs did not establish that the treatment was no longer viable. The burden lay on the claimant to make any contrary medical position clear.
4. The defendant was entitled to make a present, evidence-based prediction about accommodation on release, including the possibility of probation-approved premises. He was also entitled to consider the claimant’s current risk level when assessing future child-welfare concerns. The absence of convictions directly against children did not prevent broader risks arising from violent and criminal conduct being considered.
5. The three matters challenged under procedural fairness arose plainly from the policy. The claimant therefore had an opportunity to address them, and the defendant was not required to invite further representations specifically on each matter.
6. The Tameside duty required the defendant to ask the right question and take reasonable steps to obtain relevant information. Subject to irrationality, the manner and intensity of the inquiry were for the decision-maker: R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, applying R (Khatun) v Newham London Borough Council [2005] QB 37. No arguable failure occurred.
7. Article 8 was engaged, but the decision did not prevent fertility treatment altogether. Egg freezing remained available, making the interference limited. The policy required a balance between individual interests, child welfare, public safety and public confidence. In light of the claimant’s serious offending, violence and assessed risk to children, the restriction was proportionate.

This was a renewed first-instance application for permission to seek judicial review. Permission had been refused on the papers by Lang J on 10 July 2023. Mr Justice Julian Knowles heard the renewed application and dismissed it.