In the Media

Criminal law

PUBLISHED March 27, 2012

Human rights - Suicide - Liability for complicity in another's suicide - Claimant being paralysed

Nicklinson v Ministry of Justice: QBD (Mr Justice Charles): 12 March 2012

The claimant was in his late 50s. In 2005, he had a stroke which left him paralysed below the neck and unable to speak.

The claimant brought the instant proceedings to seek the following three declarations: (i) a declaration that it would not be unlawful, on the grounds of necessity, for his GP, or another doctor, to terminate or assist the termination of his life (the necessity declaration); (ii) a declaration that the current law of murder and/or of assisted suicide was incompatible with his rights under article 8 of the European Convention on Human Rights, in so far as it criminalised voluntary active euthanasia and/or assisted suicide (the article 8 declaration); and (iii) a declaration that the existing domestic law and practice failed to adequately regulate the practice of active euthanasia (both voluntary and involuntary), in breach of article 2 of the convention (the article 2 declaration). In considering whether the claimant would be allowed to proceed with his claim a number of preliminary issues fell to be determined by the court.

The principal issues to be determined were: (i) whether the claimant's case in respect of each declaration had any real prospect of success; and (ii) in respect of the necessity declaration, whether it was arguable that the court would actually grant the claimant the declaratory relief that he sought. In respect of the necessity declaration, consideration was given to the general proposition that the courts should be slow to change or develop the law in disputed areas of social policy, particularly when parliament had considered the position and made some changes, or had rejected the opportunity to make changes (the constitutional approach).

In respect of the article 8 declaration, consideration was given to the decisions in R (on the application of Pretty) v DPP [2002] 1 All ER 1 and R (on the application of Purdy) v DPP [2009] 4 All ER 1147 and to the relevant provisions of the Suicide Act 1961. The defendant contended that the article 8 declaration issue had been decided by the House of Lords and Strasbourg in Pretty and the court was bound by those decisions.

The court ruled: (1) It was established principle that: (i) the constitutional approach could be displaced; (ii) where fundamental rights were in issue the constitutional approach would, or could, be displaced by the principle of legality when interpreting statutes and applying the common law; (iii) there were examples of the courts introducing legal criteria and safeguards into the common law in respect of issues that did or could be said to trigger the constitutional approach; (iv) the fact that parliament had foregone opportunities to legislate on several occasions was not determinative; (v) it would not be undemocratic or unconstitutional for the courts to step in and fill a gap in the common law, even if parliament had left it deliberately empty; (vi) the courts had to evaluate the effect of, and interpret, legislation by reference to convention rights; (vii) it was for domestic courts to form a judgment on whether a convention right had been breached; (viii) the principle set out in R (on the application of Ullah) v Special Adjudicator [2004] 3 All ER 785 did not apply to issues in respect of which Strasbourg accorded a margin of appreciation; (ix) the domestic authorities to whom Strasbourg afforded a margin of appreciation included the courts, and whether the final word on proportionality was for parliament or the courts was a matter to be determined by reference to the constitutional arrangements of the contracting state; and (x) while in general it might be preferable for issues of broad social and moral policy to be determined by parliament, the fact that they were hotly contested could be a factor in favour of the court intervening, particularly if the suggested solution involved the participation of the courts on a case by case basis (see [32] of the judgment).

In the instant case, it was arguable that, notwithstanding the force of the constitutional approach, the courts could and should entertain the claim for the necessity declaration (see [32] of the judgment).

(2) It was well established that, save in exceptional circumstances, it was not appropriate for a civil court to grant a declaration as to whether conduct would amount to a criminal offence (see [34] of the judgment). It was arguable that the instant case was an exceptional case and that, if the claimant convinced the civil court that the common law should be developed or changed in the way he sought, the civil court would go on and make the declaration sought in relation to the defence of necessity (see [35], [37] of the judgment).

Accordingly, the necessity declaration part of his claim would not be struck out and the claimant would be given permission to seek such relief by way of judicial review (see [37] of the judgment).

(3) In respect of the article 8 declaration, the overlap between the common law rights of autonomy and dignity and the relevant convention rights, and the part that those convention rights played in the arguments in favour of the necessity declaration, founded the conclusion that it was not arguable that the court could or should strike a different balance between those competing interests when considering the two lines of argument. The only potential relevance of the line of argument based on article 8 of the convention was to provide an alternative head of relief. There was a real possibility that the court would conclude that it was more appropriate to grant the article 8 declaration than the necessity declaration.

That possibility concerning the grant of relief, combined with the court's finding that the claimant's case was arguable, founded the conclusion that the claim for the second declaration should be allowed to proceed (see [41]-[43] of the judgment).

(4) In respect of the rulings in Pretty and PurdyPretty was arguably obiter dicta; (ii) a relevant factor in the view of the House of Lords and the decision of the Strasbourg Court on article 8(2) of the convention was the existence of the director of public prosecution's discretion; (iii) in Purdy the House of Lords had concluded that, absent a published policy by the DPP, the relevant provisions of the act did not comply with article 8(2) of the convention, which arguably was a departure from, or a qualification of, the view and conclusions on article 8(2) of the convention in Pretty; (iv) in the instant case, unlike in Pretty and Purdy, the compliance with article 8(2) of the convention fell to be considered against the background of the law of murder as it applied to voluntary active euthanasia; (v) as Strasbourg had based its decision on article 8(2) of the convention in Pretty on the margin of appreciation, it was arguable that the court was not bound by that decision and could review and reach a different conclusion on the proportionality of a measure within the margin of appreciation; and (vi) there had been a number of developments since Pretty. Accordingly, the claimant had established an arguable case in support of the article 8 declaration (see [44], [45] of the judgment).

Accordingly, the article 8 declaration part of the claim would not be struck out and he would be given permission to seek such relief by way of judicial review (see [45] of the judgment).

(5) It was not possible to identify any part of the general arguments advanced by the claimant under the article 2 declaration head that arguably added value or force to his arguments in support of the first two declarations he sought. The claimant did not have any realistic chance of persuading a court to grant the article 2 declaration. The crucial distinction between the conclusion in respect o
f the article 2 declaration and the necessity and article 8 declarations was that, in support of the necessity and article 8 declarations, the claimant was advancing an argument based on his own asserted rights (see [48]-[50] of the judgment).

Accordingly, permission would not be granted for the claimant to seek the article 2 declaration and that part of the claim would be struck out (see [51] of the judgment).

Paul Bowen (instructed by Bindmans) for the claimant; David Perry QC and James Strachan (instructed by the Treasury Solicitor) for the defendant.