View source for ICLR R (Nicklinson) v Ministry of Justice (2013) EWCA Civ 961, (2013) MHLO 65

<i>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)</i>

<b>Regina (Nicklinson and another) v Ministry of Justice (CNK Alliance Ltd and another intervening)

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

[2013] EWCA Civ 961;  [2013] WLR (D)  326</b>

CA:  Lord Judge CJ, Lord Dyson MR, Elias LJ:  31 July 2013

Where it was the long-established position that voluntary euthanasia was murder, the court was not obliged, having considered article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the question whether the doctrine of necessity supplied a defence, to depart from that position.

However, the policy of the Director of Public Prosecutions, as to whether a helper would be prosecuted, failed with respect to article 8 of the Convention to provide sufficient clarity as to the Director’s prosecution policy in cases in which the helper was a person who had no close or emotional connection with the victim.

The Court of Appeal so held, inter alia, when: (i) dismissing the appeal of Jane Nicklinson (in her own right and as testatrix of Tony Nicklinson) from a decision of the Divisional Court of the Queen’s Bench Division of 16 August 2012 [2012] HRLR 837; (ii) dismissing the appeal of Paul Lamb; and (iii) (Lord Judge CJ dissenting) upholding the complaint of AM, appealing from the same decision of 16 August 2012, that the policy of the Director of Public Prosecutions failed to provide sufficient clarity as to the Director’s prosecution policy with respect to those helpers of a person wishing to commit suicide who had no close or emotional connection with that person. The Divisional Court had dismissed the claims of Mr Nicklinson and AM, holding that the court ought not to find that a possible defence of necessity to a murder charge was available in such a case, and that 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.

AM suffered, and Mr Nicklinson had suffered (until his death some time after the hearing before the Divisional Court), from the condition known as “locked-in” syndrome and each was incapable of ending his own life without assistance. AM’s wife did not wish to take any part in bringing about her husband’s death, which he desired, and he would need the assistance of a party who had no close or emotional connection with him. Mr Lamb was so disabled that he could not end his life without assistance, and his case was added in by order of the court after the proceedings below, because it was appreciated, following the death of Mr Nicklinson, that one of the arguments which he had advanced before the Divisional Court, namely that there should be developed a common law defence of necessity available to anyone bringing about his death, could no longer be advanced.

'''LORD DYSON MR''' and '''ELIAS LJ''' said that three issues arose, viz: (i) (the Lamb case) whether the time had come for the common law to provide a defence to murder (and assisted suicide) where that took the form of euthanasia, at least in the circumstances now faced by Mr Lamb and formerly faced by Mr Nicklinson; (ii) the scope of the protection afforded by article 8 of the Human Rights Convention, and whether the prohibitions on those providing assistance constituted a disproportionate interference with the article 8 right; and (iii) (the AM case) whether the policy of the Director of Public Prosecutions satisfied the requirement in article 8.2 that any interference with the article 8 right had to be “in accordance with the law”, in particular so that the law was made clear, accessible and foreseeable.

(i) Defence of necessity. The time had not come for the common law to be developed as proposed to recognise a defence of necessity to murder in certain cases of euthanasia, such as where a doctor or other person gave effect to the settled wish of a competent person to end his life. First, there was no self-evident reason why the fundamental right to life should give way to the values of autonomy or dignity and there were cogent reasons why sensible people might properly think that it should not. Second, it was wrong to state that there was a right to suicide. Section 1 of the Suicide Act 1961 could more accurately be described as conferring an immunity from the criminal process for those who actually committed suicide. A fortiori, if there was no right to kill yourself, there could be no right, fundamental or otherwise, to require the state to allow others to assist you to die or to kill you. Third, it was simply not appropriate for the court to fashion a defence of necessity in such a complex and controversial field: that was a matter for Parliament. Fourth, any defence provided to those who assisted someone to die would have to apply not merely to euthanasia but also to assisted suicide; and that raised the question, how could the courts develop a defence to assisted suicide when Parliament had stated in unequivocal terms that it was a serious criminal offence carrying a maximum sentence of 14 years’ imprisonment?

(ii) Blanket ban. The blanket prohibition on euthanasia and assisted suicide did not constitute a disproportionate interference with the appellants’ article 8 rights; and neither R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345 nor Strasbourg authority cast doubt on that conclusion.

(iii) Policy. Any law interfering with a Convention right had to reach a certain level of clarity before it constituted a legitimate interference. That included a certain measure of foreseeability. The law had to be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities were entitled to resort to the impugned measures: see, for example, Gülmez v Turkey (Application No 16330/02) unreported, given 20 May 2008, para 49. The conclusion was that the Director’s policy under review did not satisfy these requirements where the helper was a person who had no close or emotional connection with the victim: the consequences were insufficiently foreseeable.

'''LORD JUDGE CJ''' gave a concurring judgment as to the appeals of Mr Nicklinson and Mr Lamb, but dissented as to the AM appeal, stating that the relevant policy provided a comprehensive analysis of the factors which the Director would take into account in making a decision whether to prosecute an individual who committed the offence of assisting suicide. It was significant, too, that the removal of reference to members of the family and close relatives involved a deliberate decision by the Director that he was seeking to avoid distinctions among those who helped the “victim” to commit suicide based on what might be described as familial relationships and those who did not. Moreover, the court could not keep ordering and re-ordering the Director to issue fresh guidelines to cover each new situation.

Permission to appeal to the Supreme Court was granted in each case.

'''Appearances:''' Paul Bowen QC and Guy Vassall-Adams (instructed by Bindmans LLP) for the first and second claimants; David Perry QC and James Strachan QC (instructed by Treasury Solicitor) for the Ministry of Justice, an interested party; Philip Havers QC and Adam Sandell (instructed by Leigh Day &Co) for AM; Charles Foster and Benjamin Bradley (instructed by Barlow Robbins LLP, Guildford) for CNK Alliance Ltd, intervening in both appeals; Rebecca Trowler QC and Caoilfhionn Gallagher (instructed by Irwin Mitchell LLP) for the British Humanist Association, intervening in both appeals; John McGuinness QC (instructed by CPS Appeals Unit) for the Director of Public Prosecutions, an interested party.

'''Reported by:''' Matthew Brotherton, Barrister.

© 2013. The Incorporated Council of Law Reporting for England and Wales.