Dickson V Uk Notes

Dickson v UK [2008] 1 FLR 1315

ECtHR

Facts

D was a convicted murderer serving a sentence of imprisonment. In 1999 he met B through a pen-pal network. They were married in 2001 and wished to have a child. D and B applied to use facilities for artificial insemination. They pointed out that it was unlikely that they would be able to conceive naturally, given the likely age of the first applicant at his notional release date. The Secretary of State refused this request in 2003.

Held ECtHR

• While the Chamber confirmed that persons continued to enjoy all Convention rights following conviction except the right to liberty, it also noted that any prison sentence has some effect on the normal incidents of liberty and inevitably entailed limitations and controls on the exercise of Convention rights.

  • The fact of such control was not, in principle, incompatible with the Convention but the key issue was whether the nature and extent of that control was compatible

• The Court considers that Art.8 is applicable to the applicants' complaints in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents

  • There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction

    • Thus, restrictions must be justified. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment

• As to the applicants' interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants

  • 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

  • Similarly, while the maintaining of public confidence in the penal system has a role to play in the development of penal policy

    • and that punishment remains one of the aims of imprisonment,

      • penal policy has evolved towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence

  • The Court is prepared to accept as legitimate, for the purposes of the second paragraph of Art.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.

    • 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.

• Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded

  • While the Court has expressed its...

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