View source for ICLR R (Nicklinson) v Ministry of Justice (2012) EWHC 2381 (Admin), (2012) MHLO 77

''CRIME — Homicide — Murder — Voluntary active euthanasia — Claimant with “locked-in” syndrome seeking declaration that not unlawful on grounds of necessity to terminate life — Whether doctrine of necessity furnishing potential defence to murder charge — Whether Convention right to respect for private life requiring such defence — Human Rights Act 1998, s 6, Sch 1, Pt I, art 8''

''CRIME — Aiding and abetting — Suicide — Claimant with “locked-in” syndrome considering going to end life in country where assisted suicide lawful — Whether Director of Public Prosecutions to be required to clarify published policy statement to enable potential helpers to know whether prosecution in England likely — Suicide Act 1961, s 2(1)''

'''Regina (Nicklinson) v Ministry of Justice (Attorney General and another intervening)'''

'''Regina (AM) v Director of Public Prosecutions and others (Same intervening)'''

'''[2012] EWHC 2381 (Admin);  [2012] WLR (D)  248'''

DC:  Toulson LJ, Royce, Macur JJ:  16 August 2012

The court should not depart from the long established position that voluntary euthanasia was murder unless article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms required that it be recognised as a possible defence to a murder charge under the doctrine of necessity, which was not the case.

The Director of Public Prosecutions was under no duty to provide further clarification of his published policy statement concerning prosecution for assisting suicide under section 2(1) of the Suicide Act 1961.

The Divisional Court of the Queen’s Bench Division so held in a reserved judgment dismissing claims for judicial review: (1) by the claimant, Tony Nicklinson, seeking against the defendant, the Ministry of Justice, declarations that it would not be unlawful, on grounds of necessity, for a doctor to terminate or assist the termination of his life, and/or that the current law of murder and/or assisted suicide was incompatible with his right to respect for private life under article 8 of the Convention in so far as it criminalised voluntary active euthanasia and/or assisted suicide; (2) by the claimant, AM, seeking against the first defendant, the Director of Public Prosecutions, an order to clarify his policy statement issued in February 2010 identifying facts and circumstances to take into account in deciding whether to consent to a prosecution under section 2(1) of the 1961 Act, so as to enable other persons who might on compassionate grounds be willing to assist him to commit suicide using the services of Dignitas to know whether a prosecution would be more likely than not; and, if such an order was made, seeking against the second and third defendants, the Solicitors Regulation Authority and the General Medical Council, declarations that individual solicitors or doctors who assisted his suicide without risk of prosecution under the clarified policy would not be exposed to the risk of professional disciplinary proceedings. Both claimants suffered from the condition known as “locked-in” syndrome and were incapable of ending their own lives without assistance.

'''TOULSON LJ''' said that the question whether voluntary active euthanasia might give rise to a defence of necessity to a charge of murder was governed by the common law. Murder was not a statutory offence, and if the court was satisfied that article 8 of the Convention required that voluntary active euthanasia should in relevant circumstances be a defence, its proper course under section 6(1) of the Human Rights Act 1998 would be to recognise such a defence under the doctrine of necessity rather than to make a declaration of incompatibility. Exercise by the courts of any such dispensing power as was involved in the doctrine of necessity required great caution, and it should not be used as a means of introducing major and controversial policy change. The reasons given by the House of Lords in Airedale NHS Trust v Bland [1993] AC 789 and the Court of Appeal in R v Inglis [2011] 1 WLR 1110 for saying that it was for Parliament to change the law on euthanasia were compelling. First, the subject was profoundly difficult, raising moral, medical and practical considerations. A court hearing an individual case was not in a position to decide such broad questions. Second, as a constitutional matter, major changes involving matters of controversial social policy were for Parliament. Third, it would be impossible for the courts to control the consequences; they could not monitor a regime for assisted dying providing procedural safeguards for vulnerable people. Accordingly, it would be wrong for the court to depart from the long established position that euthanasia was murder, however understandable the motives, unless required to do so by article 8 of the Convention.

There was no authority of the Strasbourg court supporting the proposition that a blanket ban on voluntary euthanasia was incompatible with article 8. In Haas v Switzerland (2011) 53 EHRR 1169 the court accepted that the right of an individual to decide how and when to end his life was one aspect of the right to respect for private life, but concluded that the states had a wide margin of appreciation in this area. In such cases it was up to the state to determine which organ of the state should decide what legal regime to adopt. The law-maker in this area should be Parliament. Further, since both the House of Lords and the Strasbourg court held that a blanket ban on assisted suicide was not incompatible with article 8, in R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800 and Pretty v United Kingdom (2002) 35 EHRR 1, the same had to apply with added force to the ban on voluntary euthanasia. Article 8 did not require voluntary euthanasia to be recognised as a possible defence to murder.

The issue of the incompatibility of section 2 of the 1961 Act with article 8 had been determined at the highest level in the Pretty case, subject to the argument about further clarification. As to that, the approach adopted by the Director of Public Prosecutions was not to identify types of case in which he would not enforce the law as a matter of general policy, but to recognise that there would be individual cases in which the public interest did not require prosecution because the homicide was a one-off act of compassion. That approach was both constitutionally proper and consistent with the terms of the order in R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345. From his policy statement, it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting him to commit suicide that such conduct would carry a real risk of prosecution. To require him to go further and lay down a scheme by which it could be determined in advance as a matter of probability whether or not an individual would be prosecuted would be wrong for three reasons. First, it would go beyond the Convention jurisprudence about the meaning of “law”: Sunday Times v United Kingdom (1979) 2 EHRR 245. Flexibility was inherent in the exercise of a discretion as to enforcement of the law. Second, it would be impractical to lay down such guidelines: each case ultimately involved a personal judgment. Third, it would require the Director of Public Prosecutions to adopt a policy of non-prosecution in identified classes of case, which he had no power to do. Accordingly, both applications for judicial review should be refused.

'''ROYCE and MACUR JJ''' gave concurring judgments.

'''Appearances:''' Paul Bowen QC (instructed by Bindmans LLP) for the claimant in the first case; David Perry QC and James Strachan (instructed by Treasury Solicitor) for the Ministry of Justice; Philip Havers QC and Adam Sandell (instructed by Leigh Day & Co) for the claimant in the second case; John McGuinness QC (instructed by Crown Prosecution Service, Appeals Unit) for the Director of Public Prosecutions; Timothy Dutton QC and Marianne Butler (instructed byBevan Brittan) for the Solicitors Regulation Authority; Robert Englehart QC and Andrew Scott (instructed by GMC Legal) for the General Medical Council; Jonathan Swift QC and Joanne Clement (instructed by Treasury Solicitor) for the Attorney General, intervening; Charles Foster and Benjamin Bradley (instructed by Barlow Robbins LLP) for CNK Alliance Ltd, intervening.

Reported by: Alison Crail, Barrister.

© 2012. The Incorporated Council of Law Reporting for England and Wales.