R (Mellor) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS MR,LORD JUSTICE PETER GIBSON,LORD JUSTICE LATHAM,LORD JUSTICE THORPE,LORD JUSTICE CLARKE |
| Judgment Date | 03 May 2001 |
| Neutral Citation | [2001] EWCA Civ 472,[2001] EWCA Civ 742 |
| Docket Number | B1/00/3236/3236A/3236B,Case No: C/2000/2869 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 2001 |
[2001] EWCA Civ 472
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
(Mr Justice Forbes)
Lord Phillips Mr
Lord Justice Peter Gibson and
Lord Justice Latham
Case No: C/2000/2869
Mr David Pannick, QC and Ms Flo Krause (instructed by A.S. Law for the Appellant)
Miss Dinah Rose (instructed by The Treasury Solicitor for the Respondent)
Introduction
The appellant is serving a life sentence for murder. He is married. He and his wife wish to found a family. To this end he applied to the Secretary of State for the Home Department for permission to have access to facilities for artificial insemination. The Secretary of State refused his application. He applied to Forbes J. for judicial review of the Home Secretary's decision. The Judge dismissed his application by a judgment delivered on 31 July 2000. The appellant now appeals against that judgment.
In the first part of his judgment Forbes J. sets out the background facts and the legal framework. They are not contentious and I shall, with minor alterations, incorporate them in this judgment.
The Background Facts
Mr Mellor was born on 4 April 1971 and is now aged 29. In February 1995 he was convicted of murder and sentenced to life imprisonment. The tariff element of Mr Mellor's life sentence (Mr Mellor's "tariff") is due to expire in 2006, by which time he will be 35 years old.
In January 1997, whilst Mr Mellor was a prisoner at HMP Gartree, he met and formed a relationship with Tracey McColl, who was a member of the prison staff there at the time. On 17 March 1997, Miss McColl resigned from the Prison Service. On 21 April 1997 Mr Mellor was transferred to HMP Winchester, moving from there to HMP Long Lartin on 14 May 1997 and from there to HMP Nottingham on 11 October 1999. HMP Nottingham is a Category B local prison, with a wing for prisoners serving life sentences. Mr Mellor's understanding is that his next progressive move will be to a Category C prison.
On 22 July 1997, Mr Mellor and Miss McColl were married in prison. Mrs Mellor is now aged 25 and will be 31 years old when Mr Mellor's tariff expires in February 2006. In 2004, when it is possible that Mr Mellor may be granted temporary release (as to which, see paragraphs 7 and 8 below), Mrs Mellor will be 28/29 years old.
The first formal review of Mr Mellor's case by the Parole Board will take place in late 2002, 3 1/2 years prior to the expiry of his tariff, provided he has spent over 12 months as a Category C prisoner. Otherwise, his case will first be reviewed by the Parole Board in February 2003, 3 years prior to expiry of his tariff. Mr Mellor has been advised that once he reaches a Category C prison as a life prisoner, he can expect to spend 2 to 3 years in Category C conditions, if all goes well. This would then be followed by 2 years in Category D conditions (ie open conditions), followed by release on licence.
It will be open to the Parole Board, when reviewing Mr Mellor's case, to recommend that he should be transferred to open conditions. Such a recommendation would be subject to the approval of the Secretary of State and would only be made if the Parole Board were satisfied that Mr Mellor had made sufficient progress in addressing his offending behaviour to minimise the risk of re-offending, that he would benefit from open conditions and that he could be trusted not to abscond or to commit further offences whilst inside or outside prison.
After 6 months in open conditions, Mr Mellor would be eligible to apply for release on temporary "facility licence". After 9 months in open conditions Mr Mellor would become eligible for temporary release on a "resettlement licence": see paragraphs 6.1 to 6.11 of the Instruction to Governors dated 7 April 1995, Issue number IG36/1995.
Mr Mellor's prospects for temporary release, prior to expiry of his tariff, are succinctly stated in paragraph 4 of the note dated 7 July 2000, agreed between Mr Pannick QC on behalf of Mr Mellor and Ms Dinah Rose on behalf of the Secretary of State, in the following terms:
"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."
On 13 August 1997, Mr Mellor asked for permission to be allowed to inseminate his wife artificially. Mr Mellor submitted his request in writing and addressed it to the governor of HMP Long Lartin. So far as material, Mr Mellor's request was in the following terms. Spelling and punctuation have been corrected:
"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."
It is plain from Mrs Mellor's affidavit dated 5 April 2000 that she fully supports her husband's request. She is anxious to have a child. She clearly and genuinely believes that she is in a position to look after and bring up a child properly and successfully whilst Mr Mellor is still in prison. Mrs Mellor currently lives with Mr Mellor's mother in Crewe. The property is a two bedroomed house which is owned by Mr Mellor's mother. Paragraphs 9 to 13 of Mrs Mellor's affidavit are as follows:
"9. I currently work part time as a community care assistant for Cheshire County Council.
10. Gavin's mother also works part time and as it happens our work tends not to overlap so there is someone always at the house. Certainly, if I were to have a child there would be no problem arranging for full-time care to be provided by myself and Gavin's mother jointly.
11. We want a child because we are married and we feel that this would complete the family. We both appreciate that Gavin is going to be in prison for a very long time – he has a 12 year tariff (of) which he has served about 6 years and we both appreciate that he may well not be released when his tariff expires.
12. There are no genetic problems in my family or as far as I am aware in Gavin's family which would cause us any concern about having a child.
13. I have now been married to Gavin for 2 1/2 years. We are still very much in love and want nothing more than to have a child together."
On 23 January 1998, Mrs Mellor was seen and examined by Dr S J Bevan at the Health Centre, 45 Delamere Street, Crewe, in order to determine whether there was any medical impediment to her conceiving a child by artificial insemination. On the same date, Dr Bevan wrote the following report, confirming that there were no medical reasons to prevent Mrs Mellor going ahead with artificial insemination:
"I have been contacted by Tracey (Mellor) who says she is requesting AIH treatment as her husband is in prison.
Today I have seen and examined Tracey and found that she is medically fit to receive artificial insemination treatment. There is nothing in her medical notes or history that suggests that she may be unfit for this.
On examination there was no abnormality and I can see no reason at all why she should not be able to conceive in a normal manner were her husband not in prison."
Dr Bevan's report, together with other relevant information, was sent to HM Prison Service Headquarters on 15 April 1998 and formed part of the material considered by the Secretary of State in reaching his decision with regard to Mr Mellor's request.
In letter dated 12 April 2000, Mr C R Kingsland MD FRCOG, Consultant Obstetrician and Gynaecologist at the Liverpool Women's Hospital, expressed the following, unchallenged, opinions as to the medical propriety of the Mellors' request for artificial insemination and as to Mrs Mellor's ability to conceive a child in her 30s once Mr Mellor is released from prison (on the assumption that he is released reasonably soon after the expiry of his tariff, if not before on temporary releasesee above):
"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...
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