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3 English Oxford Dictionary (Oxford: Oxford University Press, 2nd edn, 1989 Google ScholarPubMed). See also

4 State v Brown 326 S.E.2d 410: the Supreme Court of the United States found that surgical castration was a form of mutilation and thus prohibited it as a sentencing option.

5 J Olsen ‘Crime stopper: chemical castration cures a sex criminal’ 31 August 1996 at 11A as cited in Carpenter, A Belgium, Germany, England, Denmark and the United States: the implementation of registration and castration laws as protection against habitual sex offenders’ (1998) 16(2) Dickinson Journal of International Law 445.Google Scholar

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8 Connelly, C and Williamson, S A Review of the Research Literature on Serious Violent and Sexual Offenders (Edinburgh: The Scottish Executive Central Research Unit, 2000 Google Scholar) para 2.60.

9 A female birth control drug.

10 Although primarily used as a libidinal suppressant, it has also been used as a treatment for prostate cancer.

11 More information on this can be found in Harrison, above n 6.

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21 Cooper, ibid, at 464.

22 This obviously also includes the reduction of testosterone, although there is evidence to suggest that the testosterone effects of Cyproterone Acetate will remain after provision of the drug comes to an end.

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26 The Mirror 17 December 2006, available at http://www.mirror.co.uk/news/northernireland/tm_method=full%26objectid=18223641%26siteid=89520-name_page.html.

27 Crime in England and Wales: A Statistical Bulletin Home Office Statistical Bulletin 7/02 (London: TSO, 2002).Google Scholar

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29 Longer than commensurate sentencing and the use of imprisonment for public protection purposes is available under Criminal Justice Act 2003, s 225.

30 Known as the Extended Sentence available under Criminal Justice Act 2003, s 227.

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33 Sentencing Statistics 2005 Home Office Statistical Bulletin 03/07 (London: Home Office, 2007) p 12.Google Scholar

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35 H Power ‘Disclosing information on sex offenders: the human rights’ in Matravers, above n 24, p 72.

36 Garland, above n 28, at 352.

37 H Kemshall and M Maguire ‘Sex offenders, risk penality and the problem of disclosure to the community’ in Matravers, above n 24, p 107.

38 Garland, above n 28, at 348.

39 Ibid, at 349.

40 Ibid.

41 Ibid, at 348.

42 Ibid, at 350.

43 Matravers, above n 24, p 3.

44 For example, Art 1(1) of the German Basic Law states ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority’, whilst the South African Constitution 1996 states that ‘Everyone has inherent dignity and the right to have their dignity respected and protected’ (s 10).

45 Universal Declaration of Human Rights 1948 (UDHR), Preamble: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Also see UDHR, Art 1: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.

46 References to human dignity can also be found in global human rights instruments such as the International Covenant on Civil and Political Rights 1966, Preamble and Art 10, International Covenant on Economic, Social and Cultural Rights 1966, Preamble and Art 13, Preamble to the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and in Regional Instruments such as the OAU African Charter on Human and Peoples’ Rights 1981 (1982) 21 ILM 58, Art 5.

47 See Feldman, D Human dignity as a legal value: part 2’ (2000) Spring, Public Law 61 Google Scholar on how dignity has been used indirectly by the courts in areas such as immigration, harassment and medical treatment. Further, see ; discussing how a medical law case in 2004 was the first to use human dignity directly as a central argument in an English Court in R (Burke) v General Medical Council[2004] EWHC 1879 (Admin), [2005] QB 424. The High Court included dignity in the best interests test, which was held inadmissible by the European Court of Human Rights.

48 Gearty, C Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) p 4 Google Scholar. The other two principles are the principles of respect for civil liberties and the principle of legality.

49 Feldman, D Human dignity as a legal value: part 1’ (1999) Winter, Public Law 682.Google Scholar

50 See ibid, referring to the concept as ‘malleable’. See also Donnelly, J Universal Human Rights in Theory and Practice (Cornell: Cornell University Press, 2nd edn, 2003) pp 14–16 Google Scholar, and Gearty, above n 48, pp 86–88.

51 For example, the development of protection for homosexuality and transsexualism under Art 8 right to family and private life. See, eg, Dudgeon v United Kingdom (1982) 4 EHRR 149, Goodwin v United Kingdom (2002) 35 EHRR 447.

52 Feldman, above n 479, at 686.

53 See ibid.

54 See below for a discussion on convention rights.

55 Von Hirsch, A Rehabilitation’ in Von Hirsch, A and Ashworth, A (eds) Principled Sentencing, Readings on Theory and Policy (Oxford: Hart Publishing, 1998) p 1.Google Scholar

56 Crow, I Treatment and Rehabilitation of Offenders (London: Sage, 2003).Google Scholar

57 Ibid, p 5.

58 HA Bedau ‘Punishment’ in Stanford Encyclopaedia of Philosophy, available at http://plato.stanford.edu/entries/punishment.

59 Crow, above n 56, p 16.

60 Braithwaite, J Crime, Shame and Reintegration (Sydney: Cambridge University Press, 1989).CrossRefGoogle Scholar

61 Drugs commonly prescribed for depression, anxiety and compulsive disorder.

62 National Offender Management Service Medical Treatment for Sex Offenders Probation Circular 35/2007 (London: NOMS, 2007).Google ScholarPubMed

63 Miller, R Chemical castration of sex offenders: treatment or punishment’ in Winick, BJ and LaFond, JQ (eds) Protecting Society from Sexually Dangerous Offenders. Law, Justice and Therapy (Washington DC: American Psychological Association, 2003) p 252.Google Scholar

64 Ibid, p 254.

65 Chatteron v Gerson [1981] 1 QB 432, Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All ER 643. See also Freeman v Home Office No 2 [1984] QB 524: ‘If a doctor gives treatment without explaining to the patient what the patient is suffering from, what the doctor is proposing to do for it and the likely or possible side effects from it, he may be liable in negligence’.

66 Miller, above n 63, p 255. See also Freeman v Home Office, above n 65, where the Court of Appeal held that consent in a prison setting was an issue of fact not of law. A prison setting does not in itself negate consent but is a question of fact and the court must be aware that there is a risk consent may not be ‘real’. In R (H) v Mental Health Review Tribunal [2007] EWHC 884 (Admin) H was under a conditional discharge from a hospital order. One of the conditions was that he complied with the taking of prescribed medication. H argued this meant he was under compulsion to take the treatment and interfered with his common law right to refuse treatment and Art 8 of the ECHR. The court found that the condition did not constrain H. He could still refuse to take the medication. Any pressure on H was from the conditional discharge itself not the condition. As the Secretary of State had to consider up-to-date medical evidence, refusal to take medication would not in itself automatically lead to recall to hospital.

67 R (H), ibid, where conditional consent accepted as long as claimant's will not overborne. H still had the power to refuse consent.

68 Recommendation R(92)16 of Committee of Ministers to Member States on the European Rules on Community Sanctions and Measures, Council of Europe 1992.

69 Ibid, r 20.

70 Ibid, rr 30–36.

71 Council of Europe, European Committee on Crime Problems, The State of Work on the Text of a Draft Recommendation on the Treatment of Sex Offenders in Penal Institutions and the Community CDPC-BU (2006) 02 E.

72 Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse 2007, Council of Europe CETS No 201 (not yet in force), Art 17 (opened for signature 25 October 2007). As of 30 June 2008 28 signatures, no ratifications (UK signed but not ratified 5 May 2008).

73 Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse 2007: Explanatory Report 2007, Council of Europe CETS No 201, paras 110–111.

74 Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment, Report to the Czech Government on the Visit to the Czech Republic of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment 27 March–7 April, 21–24 June 2006 CPT/INT (2007) 32, para 109.

75 Ibid.

76 Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 – English criminal law does not recognise consent to any assaults amounting to actual or grievous bodily harm. In this case, the court allowed the state to criminalise sado-masochistic behaviour where harm amounting to actual bodily harm was caused despite the fact that those involved were consenting adults.

77 For example, see Glass v UK (2004) 39 EHRR 341 where medical treatment given to a child against a mother's wishes was a violation of Art 8 as proper procedures had to be followed to allow the court to override the mother's wishes. For cases concerning consent to treatment involving deprivation of liberty under Art 5, see Storck v Germany (2005) 40 EHRR 406, HL v UK (2005) 40 EHRR 76.

78 Chatteron v Gerson, above n 65; Sidaway v Board of Governors, above n 65.

79 See Feldman, above n 49.

80 For example. see Re AK (Medical Treatment: Consent) [2001] 1 FLR 129 per Hughes J: ‘Accordingly, the first principle of law which I am satisfied is completely clear, is that in the case of an adult patient of full capacity his refusal to consent to treatment or care must in law be observed’.

81 Mental Capacity Act 2005 has replaced some of the common law definitions and rules on competence but applies similar tests as to what amounts to incapacity.

82 Airedale NHS Trust v Bland [1993] 1 All ER 821 at 826.

83 Re MB (Medical Treatment) [1997] 2 FLR 426 at 439; see also Thorpe J in Re S (Adult Patient: Sterilisation) [2001] Fam 15 at 30.

84 Mental Health Act 1983 (as amended by the new Mental Health Act 2007).

85 Mental Health Act 1983, s 3(2)(a) – also the treatment has to be necessary for the health and safety of the patient or the protection of others and cannot be provided unless detained under the Act, s 3(2)(c).

86 Mental Health Act 1983, s 57 and reg 16 of Mental Health (Hospital, Guardianship and Consent to treatment) Regulations 1983, SI 1983/893.

87 Under it, the treatment is only carried out consensually, meaning a valid consent where the patient appreciates the nature, purpose and likely effects of the treatment and it must be certified by an appointed medical practitioner. See R v Mental Health Act Commission, ex p W [1988] 9 BMLR 77 which deals with reg 16 and s 57 of the Act. The case examines the issue of consent and its rationale has been criticised as being unclear as to the nature of consent. Fennell concludes that it decides that consent under this section is similar to consent under the common law. See P Fennell ‘Sexual suppressants and the Mental Health Act’ 1988 Crim LR 660.

88 Mental Health Act 1983, s 58(3)(b), as amended.

89 Mental Health Act 2007.

90 Mental Health Act 1983.

91 Reform of the Mental Health Act 1983 Proposals for Consultation Cmd 4480, 1999.

92 See Laing, J Rights versus risk? Reform of the Mental Health Act 1983’ (2000) 8 Medical Law Review 210 CrossRefGoogle ScholarPubMed. See also criticisms by organisations such as MIND Response to the Government Consultation Paper on Reform of the Mental Health Act 1983 March 2000.

93 For detailed criticisms of the original Bill and the recent Bill, see Joint Committee on Human Rights Draft Mental Health Bill Twenty-Fifth Report, HL 181/HC 1294, November 2002, Joint Committee on Human Rights Legislative Scrutiny: Mental Health Bill Fourth Report, HL 40/HC 288, February 2007, Joint Committee on Human Rights Legislative Scrutiny: Seventh Progress Report Drawing Special Attention to the Mental Health Bill Fifteenth Report, HL 112/HC 555, May 2007.

94 Mental Health Act 2007, s 1 amending s 1(3) of the 1983 Act. Under this provision ‘sexual deviancy’ alone did not constitute a mental disorder for the purposes of detention and/or treatment.

95 Sexual deviance can be seen as a social construct as what is considered deviant may change with cultural norms – homosexuality was once labelled as unacceptable sexual deviance. Paedophilia is one of several sexually deviant behaviours known as paraphilia, the classification of which is open to debate in terms of mental disorder and is poorly described though seems to require a deviant behaviour that is recurring, causes distress to the individual and interferes with personal functioning. See D Grubin Second Expert paper: Sex Offender Research NHS National Programme on Forensic Mental Health Research and Development 2006, available at http://www.nfmhp.org.uk/EP%20Sex%20Offender%20Research.pdf.

96 Meaning he demonstrates ‘abnormally aggressive or seriously irresponsible conduct’ beyond sexual deviance. R v Mental Health Act Commission, ex p W [1988] 9 BMLR 77; see also R v Mental Health Review Tribunal, ex p Clatworthy [1985] 3 All ER 699; similar provisions apply in Scotland, see W v Secretary of State for Scotland [1998] SLT 841, where it was held that where a patient's mental disorder manifested itself in sexually deviant behaviour, the patient could be detained under the Mental Health (Scotland) Act 1984.

97 ‘It is nothing new for dangerous paedophiles to be detained under the Act, as their behaviour is often linked to dissocial personality disorder, or, in the current ungainly terminology, psychopathic disorder. If such people can properly be detained under the Act, we see no reason why clinicians should be barred from using the Act to treat patients whose only clinically recognised disorder is one involving abnormal sexual desires or behaviours’: Baroness Royal of Basildon Hansard HL Deb, cols 84–86, 8 January 2007.

98 Meaning that it has to be shown that ‘such treatment is likely to alleviate or prevent a deterioration of his condition’: Mental Health Act 1983, s 2(b).

99 Mental Health Act 2007, ss 4 and 6. Treatment is defined as including ‘nursing and also psychological intervention and specialist mental health habilitation, rehabilitation and care (Mental Health Act 2007, s 7(2), amending s 145 of Mental Health Act 1983) and any reference to treatment ‘shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations’(Mental Health Act 2007, s 7(3), amending s 145 of Mental Health Act 1983).

100 ‘Where appropriate medical treatment is available, no one should be excluded from detention, or discharged, solely because it cannot be shown that the treatment is not only for the right purpose but is likely to produce a particular benefit or outcome’: Consultation on the Draft Revised Mental Health Act 1983 Code of Practice Department of Health, 25 October 2007, para 6.12.

101 See House of Lords amendment which attempted unsuccessfully to insert a need for therapeutic benefit in the Act; see Hansard HL Deb, cols 925–939, 19 February 2007. See also evidence given to the Joint Committee on Human Rights by the Mental Health Alliance (evidence prepared by the Royal College of Psychiatrists): ‘it is inherently unethical to permit people to be detained in hospital or otherwise have their lives controlled because of their ill health or personality when they are not obtaining any benefit from it. To jettison this principle is to change health legislation into legislation of social control, even if that is not the intention’: Appendix 4, Memorandum dated 12 January, from the Mental Health Alliance Joint Committee on Human Rights Legislative Scrutiny: Mental Health Bill Fourth Report, HL 40/HC 288, February 2007.

102 See concerns raised by the Mental Health Alliance over the vagueness of the provisions regarding detention and compulsory treatment: Appendix 4, ibid, and an example used by North East London Mental Health Trust to illustrate how a man with paedophilic tendencies may be compulsorily detained where a parent has raised an alarm and the medical staff feel under pressure to compulsory detain even where there are doubts that the nature of the personality disorder requires this. See Memorandum from North East London Mental Health Trust (DMH 112). Evidence to the Joint Committee on the Draft Mental Health Bill Draft Mental Health Bill Vol III Session 2004–05, HL 79-111/HC 95-11. This was also a concern under the old treatability test; see Fennell, above n 87.

103 National Offender Management Service, above n 62, p 3.

104 See Joint Committee on Human Rights, above n 101, paras 59–65.

105 Discussed in more detail below under Art 3.

106 See R (Munjaz) v Mersey Care NHS Trust and others [2006] 4 All ER 736.

107 See Joint Committee on Human Rights, above n 101, para 66. In particular, this may be difficult to justify under Art 8 dealing with the respect of family and private life.

108 ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

109 See generally Ovey, C and White, R The European Convention on Human Rights (Oxford: Oxford University Press, 4th edn, 2006) pp 84–86 Google Scholar. Positive obligations include the duty to investigate allegations of torture, inhuman or degrading treatment (Assenov v Bulgaria (1999) 28 EHRR 651), and ensure protection and legal framework in place (Z and Others v UK (2002) 34 EHRR 97; A v UK (1999) 27 EHRR 60).

110 R (Adam and Others) v Secretary of State for Home Department [2005] UKHL 66, [2006] 1 AC 396. The court found that legislation that could leave asylum seekers (another group on the margins of society) destitute could be incompatible with Art 3.

111 Chahal v UK (1997) 23 EHRR 413 at para 80 (emphasis added).

112 Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse 2007, above n. 73.

113 Eighth Amendment of United States Constitution.

114 See generally Ovey and White, above n 109, pp 83–84.

115 See above discussion on consent. Also, in the USA, for example, state laws allowing ‘chemical castration’ have been criticised as focusing solely on the risk of re-offending and not on medical need; their only purpose therefore can be incapacitation and not treatment. See JF Stinneford Incapacitation through Maiming: Chemical Castration, the Eight Amendment, and the Denial of Human Dignity University of St Thomas School of Law Legal Studies Research Paper No 06-25, available at http://papers.ssrn.com/abstract=918271.

116 Polotoratskiy v Ukraine (2004) 39 EHRR 43.

117 Greek Case (1969) 12 Yearbook 186.

118 See Ireland v UK (1979–1980) 2 EHRR 25 at para 197.

119 See ibid, at para 162; Tyrer v UK (1979–1980) 2 EHRR 1 at para 30.

120 Tyrer v UK, ibid, at para 23.

121 Indeed in Keenan v UK (2001) 22 EHRR 913 at para 110, the European Court of Human Rights stated that proof of the actual effect on the victim may not be necessary if, for instance, the victim is incapable of pointing to any ill-effects.

122 See State v Brown, above n 4, and Olsen, above n 5.

123 In US states that have compulsory chemical castration schemes for paedophiles, offenders will receive treatment for as long as they are considered to pose a risk of re-offending and in Florida the court can order treatment for any period of time, up to and including the life of the defendant: Stinneford, above n 115.

124 Spalding, above n 17.

125 Grare v France (Application No 18835/91) (1993) 15 EHRR CD 100. In this case the Commission held that the ‘distressing’ side effects of drugs taken for a mental disorder did not reach the severity needed for Art 3 ( and was justified under Art 8) and so the application was held to be manifestly unfounded.

126 (1992) 15 EHRR 437.

127 Ibid, para 82.

128 Ibid.

129 See Jalloh v Germany (2006) 42 EHRR 721 where the use of medication to remove drugs from a suspect's stomach was held to violate Art 3; Nevmerzhitsky v Ukraine (2005) 40 EHRR 210 where force feeding of a prisoner was found to be aimed at stopping the prisoner's protest and was not medically necessary.

130 R (JB) v Responsible Medical Officer Dr A Haddock, Mental Health Act Commission Second Opinion Appointed Doctor Dr Rigby, Mental Health Act Commission Second Opinion Appointed Dr Wood [2006] EWCA Civ 961, (2006) 93 BMLR 52.

131 Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582: a doctor should act in a way a responsible doctor would act in similar circumstances.

132 Above n 130.

133 Above n 131.

134 See P Bartlett ‘A matter of necessity? Enforced treatment under the Mental Health Act’ [2007] 15 Med Law Review 86: ‘Evidence-based practice is not a new concept in medicine; it seems not unreasonable to insist that practitioners wishing to treat persons without consent should at the very least be able to demonstrate a solid and objective foundation for their belief that the treatment would be beneficial to the patient’.

135 Jalloh v Germany, above n 129.

136 Nevmerzhitsky v Ukraine, above n 129 (2005) ECHR 210.

137 Consultation on the Draft Revised Mental Health Act 1983 Code of Practice Department of Health, 25 October 2007, ch 6.

138 Bartlett, above n 134. It should also be noted that to assess necessity differently between mentally and physically disordered persons may amount to a discriminatory practice. See Hale, B The Human Rights Act and mental health law: has it helped?’ (2007) May, Journal of Mental Health Law 7.Google Scholar

139 Jalloh v Germany, above n 129.

140 Ibid. Judgment of Judge Bratza at O-14, prohibitions in Art 3 apply ‘irrespective of the nature of the victim's conduct and [do] not allow for the balancing of competing public interests against the use of treatment which attains the Article 3 threshold. Just as the urgent need to obtain evidence of a serious offence would not therefore justify resort to treatment which would otherwise attain the threshold, so I also consider that the threshold cannot change according to the gravity of the suspected offence or the urgency of the need to obtain evidence of the offence’.

141 Ashworth, A Case comment, human rights: Article 3–Article 6’ (2007) Sept, Crim LR 717.Google Scholar

142 Especially given Jalloh was a Grand chamber decision with only a majority of 10:7 deciding the treatment given did amount to degrading treatment. A dissenting minority decided the treatment did not reach the threshold and that drug dealers must be aware they may face such treatment: ‘All in all, we accept that the treatment to which the applicant was subjected was harsh. However, anyone engaging in drug trafficking must take into account the possibility of being subjected to law enforcement measures which are far from pleasant. The measures applied in this case in our view do not reach the threshold of inhuman or degrading treatment within the meaning of Art.3’: dissenting judgments of Judges Ress, Pallonpa, Baka and Sikut at O-IV13. Therefore should sex offenders take into consideration the possibility of treatment if they offend given the potential gravity of any offence?

143 ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence.’

144 ‘(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime for the protection of health or morals, or for the protection of rights and freedoms of others.’

145 Botta v Italy (1998) 26 EHRR 241.

146 See Dudgeon v UK (1983) 5 EHRR 573 and Norris v Ireland (1991) 14 EHRR 186.

147 See Pretty v UK (2002) 35 EHRR 1 at para 65: ‘The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance’.

148 See Dupre, C Human Dignity and the withdrawal of medical treatment: a missed opportunity?’ (2006) 6 EHRLR 687.Google Scholar

149 Storck v Germany, above n 77, at para 143.

150 For example, where a measure was not in accordance with law under Art 8; see Malone v UK (1985) 7 EHHR 14.

151 As argued for by the JCHR, with regard to the guidelines for appropriate treatment under Mental Health legislation. See Joint Committee on Human Rights, above n 101, para 65 – a Code of Practice may be departed from for cogent reasons and may only be accessible to professionals.

152 Ibid, para 65: ‘We consider the principal legitimate aim for which medical treatment should be imposed under Article 8(2) is health, even if incidental purposes may be the prevention of crime or protection of the rights and freedoms of others. We therefore think treatment must be necessary to protect health (clinically necessary), and a proportionate response’.

153 Criteria that the court will examine to decide if a balance has been struck include is there a link between the measure and the legitimate aim, is it the least intrusive measure that could have been taken, does it defeat the essence of the right? For an example see Hatton v UK (2003) 36 EHRR 338.

154 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1.

155 Re MB (Medical Treatment) [1997] 2 FLR 426 at 439.

156 Re A (Medical Treatment: Male Sterilisation) (1999) [2000] 1 FLR 548 at 556.

157 K Savell ‘Sex and the sacred: sterilization and bodily integrity in English and Canadian law’ 49 (2004) McGill LJ 1093 at 1119.

158 Also if an attack by a sex offender was life-threatening then the state may also have a positive obligation under Art 2 which ensures the right to life. The ECtHR has placed a positive obligation on a state where it knows or ought to have known of a real and immediate risk to life to an applicant from a third party and does not take reasonable steps to prevent it. See Osman v UK (2000) 29 EHRR 245.The principle can also be said to be applicable to Art 8 where the state fails to prevent a violation of Art 8 either by its own agents or by non-state actors. See X and Y v Netherlands (1986) 8 EHRR 235.

159 Handyside v UK (1979–80) 1 EHRR 737.

160 See Laskey, Jaggard and Brown v UK (1996) 23 EHRR 101. The ECtHR gave a wide margin of appreciation despite the case involving sexual relations. The nature of the relations, sado-masochism, and the legitimate aim given being crime prevention and health, the UK was afforded a margin of appreciation which meant there was no violation of Art 8.

161 ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

162 Fenwick, H Civil Liberties and Human Rights (London: Cavendish Publishing, 3rd edn, 2002) p 81.Google Scholar

163 Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326.

164 Re B (A Minor) (Wardship: Sterilisation) [1988] 1 AC 199 at 203.

165 Whether the right to reproduce or found a family also applies in this case to men was, unfortunately, not discussed, but it would be expected that it would. The ECtHR has found that in the complex area of consent to the use of embryos, Arts 8 and 12 were not violated when one partner, in this case, the male partner withdraws consent to their use. The court was arguably balancing the woman's right to found a family with the man's right not to do so under Art 8. The court gave a wide margin to the state in a complex moral and legal area: Evans v UK (2006) 43 EHRR 21.

166 The ECtHR has found that Art 12 was not breached in several cases concerning the reproductive rights of prisoners: eg X v Federal Republic of Germany (1961) 4 Yearbook 240.

167 (2007) 44 EHRR 21.

168 Criminal Justice Act 2003 which legislated for indeterminate sentences has been successfully challenged. In R (Walker) v Secretary of State for the Home Department [2008] EWCA Civ 30, [2008] 3 All ER 104 the Court of Appeal found that a failure by the Secretary of State to provide measures that would allow prisoners to demonstrate to the parole board that they did not need to be detained after expiry of their sentence was a breach of the Secretary of State's public law duty and could amount to a breach of Art 5 of the ECHR, which prohibits arbitrary detention.

169 See, eg, Art 1 of the ECHR: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’.

170 Winterwerp v The Netherlands (1981) 3 EHRR 7.

171 Consultation on the Draft Revised Mental Health Act 1983, above n 100, ch 6.

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