Dickson v the United Kingdom - 44362/04 [2011] ECHR 1662 (14 September 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to respect of the family life of the applicants, a prisoner serving a life sentence and his wife, due to the Home Secretary’s refusal to grant their request for access to artificial insemination (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the United Kingdom’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

This case concerns the violation of the right to respect for the family life of the applicants, a prisoner serving a life sentence and his wife, due to the Home Secretary’s refusal to grant their request for access to artificial insemination (violation of Article 8). The Minister’s refusal, which was founded on the relevant policy, had subsequently been endorsed by judicial decisions.

The European Court considered that the national authorities had failed to ensure a fair balance between the interests of society in general and those of the applicants, noting first that the matter was of crucial importance to the applicants, who had been a couple since 1999 and married since 2001. Artificial insemination represented the only real possibility they had to have a family, given the wife’s age at the earliest date upon which the husband might expect to be freed. Moreover, as it was not enshrined in primary legislation, these issues had never been weighed or assessed by Parliament (see §83 of the judgment).

The European Court noted that on 19 December 2006, the applicant was transferred to an open prison and would in principle be eligible for unescorted home leave. The United Kingdom government indicated that
Mr Dickson had had three periods of unescorted home leave between 11 December 2007 and 22 February 2008. He will continue to be eligible for such periods as long as he keeps to the conditions of the licence and there is no change to the risk assessment in his case. On 19 August 2008, the applicants’ lawyer confirmed that, in these circumstances, the Dicksons no longer required access to assisted conception.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

The policy on assessing applications for permission to access assisted conception facilities by prisoners has been amended. The policy, which takes the form of a non-exhaustive list of criteria, is issued to all new applicants and/or any other person who wishes to see it. The provision included in the old policy that applications will only be granted in very exceptional circumstances has been removed. It has been indicated that, in compliance with the judgment, the Secretary of State will apply a proportionality test when taking a decision and balance the individual circumstances of the applicant against the criteria in the policy and the public interest. Decisions made under the policy may be challenged in judicial review proceedings.

The authorities consider that, taking into account the Secretary of State’s obligation under Section 6 of the Human Rights Act to respect rights protected by the Convention, the new policy can be applied in a manner which ensures a fair balance between public and private interests, as identified by the European Court in the judgment. It may further be noted that any application of the policy which does not strike this balance would be subject to judicial review.

The judgment of the European Court was published at: European Human Rights Reports (2008 46 E.H.R.R.41), Family Court Reports [2007] 3.F.C.R.877, Family Law Journal [2008] Fam. Law 211, New Law Journal (2007) 157 NLJ 1766 and The Times Law Reports (The Times, 21 December 2007).

The government considers that the measures adopted have remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent new similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
--	5 000 EUR	21 000 EUR (less 2 148.09 EUR legal aid paid by the Council of Europe)	23 851.91 EUR
Paid on 08/01/2008

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You are here: BAILII >> Databases >> European Court of Human Rights >> Dickson v the United Kingdom - 44362/04 [2011] ECHR 1662 (14 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1662.html Cite as: [2011] ECHR 1662