![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII’s 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nicklinson, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961 (31 July 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html Cite as: [2014] 2 All ER 32, [2014] 1 FCR 316, (2013) 16 CCL Rep 413, (2013) 133 BMLR 46, [2013] HRLR 36, 133 BMLR 46, [2013] EWCA Civ 961, [2013] WLR(D) 326, 16 CCL Rep 413 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2013] WLR(D) 326]
[Buy ICLR report: [2015] 1 AC 657]
[Help]
C1/2012/2918 & C1/2012/2931 |
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
TOULSON LJ, ROYCE AND MACUR JJ
CO/7774/2010
HQ11X04443
Strand, London, WC2A 2LL |
||
B e f o r e :
THE MASTER OF THE ROLLS
and
LORD JUSTICE ELIAS
____________________
THE QUEEN ON THE APPLICATION OF MRS JANE NICKLINSON (IN HER OWN RIGHT AND AS ADMINISTRATRIX OF THE ESTATE OF MR TONY NICKLINSON DECEASED) MR PAUL LAMB |
Appellants |
|
- v - |
||
MINISTRY OF JUSTICE |
Respondent |
|
- and - |
||
DIRECTOR OF PUBLIC PROSECUTIONS - and - |
1st Interested Party |
|
HER MAJESTY'S ATTORNEY GENERAL |
2nd Interested Party |
|
- and - |
||
CNK ALLIANCE LIMITED (CARE NOT KILLING) BRITISH HUMANIST ASSOCIATION |
Intervenors in both Appeals |
|
- Linked with - |
||
(3) THE QUEEN ON THE APPLICATION OF AM |
Appellant |
|
- v - |
||
DIRECTOR OF PUBLIC PROSECUTIONS |
Respondent |
|
- and - |
||
A PRIMARY CARE TRUST |
Interested Party |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Perry QC and Mr James Strachan QC (instructed by Treasury Solicitor) for the Respondent Ministry of Justice
Mr Philip Havers QC and Mr Adam Sandell (instructed by Leigh Day & Co) for the Appellant AM
Mr Charles Foster and Mr Benjamin Bradley (instructed by Barlow Robbins LLP, Guildford) for CNK Alliance Limited
Ms Rebecca Trowler QC and Ms Caoilfhionn Gallagher (instructed by Irwin Mitchell LLP) for The British Humanist Association
Mr John McGuiness QC (instructed by the CPS Appeals Unit) for the Respondent Director of Public Prosecutions
____________________
Crown Copyright ©
TABLE OF CONTENTS |
Para |
The Master of the Rolls and Lord Justice Elias: | |
INTRODUCTION | 1 |
THE APPELLANTS | 5 |
Martin | 6 |
Tony Nicklinson | 11 |
Paul Lamb | 13 |
Jane Nicklinson | 15 |
THE RELEVANT LAW | 16 |
Assisted dying at common law | 17 |
Article 8 ECHR | 31 |
THE ISSUES | 37 |
ISSUE 1 – SHOULD THE COMMON LAW BE DEVELOPED? | 47 |
ISSUE 2 – THE LEGAL PROHIBITIONS AND ARTICLE 8 | 67 |
Is a blanket prohibition compatible with Article 8? | 70 |
The margin of appreciation | 107 |
ISSUE 3 – DOES THE POLICY OF THE DPP SATISFY THE CONVENTION PRINCIPLES OF PROPORTIONALITY? | 115 |
The Policy | 127 |
Is the Policy "in accordance with the law"? | 129 |
OVERALL CONCLUSION | 149 |
The Lord Chief Justice: |
|
THE ROLE OF THE COURT |
151 |
THE BLANKET BAN AND PROPORTIONALITY |
157 |
THE DPP'S DISCRETION |
163 |
THE DPP'S POLICY IN RESPECT OF CASES OF ASSISTED DYING |
170 |
CONCLUSION |
188 |
The Master of the Rolls and Lord Justice Elias :
"The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast: see for a sample of the range of views: Glanville Williams, The Sanctity of Life and the Criminal Law, 1958, chap 8. Ronald Dworkin, Life's Dominion: An Argument About Abortion and Euthanasia, 1993, chap 7; Euthanasia Examined: Ethical clinical and legal perspectives, Essays edited by John Keown, 1995; Otlowski, Voluntary Euthanasia and the Common Law, 1997, chap 5-8; Mary Warnock, An Intelligent Person's Guide to Ethics, 1998, chap 1. It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do."
The appellants.
Martin.
Tony Nicklinson.
Paul Lamb.
Mrs Nicklinson.
The relevant law.
Assisted dying at common law.
"The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated."
"Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so."
Lord Hope expressed similar sentiments: see para 106.
"2 – Criminal liability for complicity in another's suicide
(1) A person ("D") commits an offence if—
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D's act was intended to encourage or assist suicide or an attempt at suicide."
"Thou shalt not kill; but needst not strive
Officiously to keep alive."
"to cross the Rubicon which runs between on the one hand the care of the living patient and the other hand euthanasia – actively causing his death to avoid or to end his suffering." (page 865).
"It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorise euthanasia, even in circumstances such as these; for once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others."
"No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation."
One of the submissions made on behalf of Tony Nicklinson and Paul Lamb is that this distinction between acts and omissions is unprincipled and unsatisfactory and should no longer reflect the common law.
Article 8.
"Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 the rights and freedoms of others."
"(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?"
The issues.
(a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case;
(b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; that there are no alternative means available by which his suffering may be relieved; and that he has made a voluntary, clear, settled and informed decision to end his life;
(c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient's suffering outweighs his or her duty to preserve life.
Should the common law be developed?
"Dignity defines what it means to be human. It defines the depth of individual autonomy throughout life and, most certainly, at death. Usurping a mentally competent, incurably ill individual's ability to make end-of-life decisions and forcing that person against his will to suffer a prolonged and excruciating deterioration is, at its core, a blatant and untenable violation of the person's fundamental right of human dignity."
"Making someone die in a way that others approve but he believes a horrifying contradiction of his life is a devastating, odious form of tyranny."
"that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control" (p.865).
"On the moral issues raised by this case, society is not all of one mind…the position therefore, in my view, is that if the judges seek to develop new law to regulate the new circumstances, the law so laid down will of necessity reflect judges' views on the underlying ethical questions, questions on which there is a legitimate division of opinion…Where a case raises wholly new moral and social issues, in my judgment it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges' moral stance when society as a whole is substantially divided on the relevant moral issues. Moreover, it is not legitimate for a judge in reaching a view as to what is for the benefit of the one individual whose life is in issue to take into account the wider practical issues as to allocation of limited financial resources or the impact on third parties of altering the time at which death occurs."
"the whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules distinct from the general criminal law, but also a sound procedural framework within which the rules can be applied to individual cases".
"However, problems of mercy killing, euthanasia, and assisted suicide must be decided by Parliament which, for this purpose at any rate, should be reflective of the conscience of the nation. In this appeal we are constrained to apply the law as we find it to be. We cannot amend it or ignore it."
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The legal prohibitions and Article 8
Is a blanket prohibition compatible with Article 8?
"a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person"
and it added that it could not constitute legal justification for someone else to bring about that person's death. Lord Bingham, with whose judgment Lords Steyn, Hope and Scott expressly agreed, then summarised Mrs Pretty's arguments and his conclusions with respect to them were as follows (paras 29-30):
29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully-informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First, "Laws are not made for particular cases but for men in general." Second, "To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied" (Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed, 1970, at pp 735, 496). It is for member states to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R v United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p 61, para 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p 49, para 239):
"We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life."
It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.
30. If section 2(1) infringes any convention right of Mrs Pretty, and recognising the heavy burden which lies on a member state seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the convention; it is simply to say that the present legislative and practical regime do not offend the convention."
"The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally-competent adult who knows her own mind, was free from pressure, and who has made a fully-informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequence of her incurable and distressing illness at a very high personal cost."
"Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in Rodriguez, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures."
The reference to the "vulnerability of the class" as a justification for the prohibition echoes the approach by Lord Steyn in the House of Lords.
"The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which "mercy killing" was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence."
"… Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable."
"Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse."
"The discretion conferred on the Director of Public Prosecutions by section 2(4) is integral to the application of the criminal offence created by section 2(1) … and the flexibility introduced by the consent provisions of section 2(4) was recognised by the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 as an important factor relevant to establishing that the prohibition in section 2(1) was not a disproportionate interference with Article 8: see at para 76. Section 2(4), therefore, constitutes parliamentary acknowledgment that there is a category of individuals who, notwithstanding that they have committed the offence under section 2(1), should nevertheless suffer no criminal penalty as a result and whom it is not in the public interest to prosecute. The legislation, however, leaves this class of individuals undefined."
"The prohibition on aiding, abetting, counselling or procuring a suicide in section 2(1) taking into account the Director's discretion, is proportionate and "in accordance with the law", as the European Court found in Pretty v United Kingdom at paras 68-78. In reaching that conclusion, the court at para 76, drew attention to and specifically relied on the flexibility afforded to prosecutors to consider the circumstances of individual cases as important to the proportionality of the restriction. It would be remarkable in these circumstances if the existence of the consent requirement without the promulgation of a specific further Policy limiting its application were to be found to be in breach of Article 8.2; such a conclusion would be inconsistent with the approach of the court in Pretty v United Kingdom."
"However, the Court went on to take account of the flexibility in the law produced both by the requirement that the DPP consent to any prosecution and by the wide range of permissible sentences. Thus, at para 76:
"It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence".
Both sides have understandably gained comfort from that passage. For the DPP, it justifies a blanket ban coupled with flexible enforcement. For Ms Purdy, it contemplates that there will be individual cases in which the deterrent effect of a prosecution would be a disproportionate interference with the autonomy of the person who wishes to end her life. Moreover, in an argument which was not raised in Pretty, if the justification for a blanket ban depends upon the flexibility of its operation, it cannot be "in accordance with the law" unless there is greater clarity about the factors which the DPP and his subordinates will take into account in making their decisions.
My Lords, I accept that argument on Ms Purdy's behalf …. " (emphasis added.)
"There are not many crimes of which it can be said that their discouragement by the State may violate the fundamental human rights of others. Yet undoubtedly that is true in certain circumstances of the conduct criminalised by section 2(1) of the Suicide Act 1961 …"
"The rejected challenge to the proportionality of the blanket ban notwithstanding, it seems to me implicit in the Court's reasoning that in certain cases, not merely will it be appropriate not to prosecute, but a prosecution under section 2(1) would actually be inappropriate. If in practice the ban were to operate on a blanket basis, the only relaxation in its impact being by way of merciful sentences on some occasions when it is disobeyed, that would hardly give sufficient weight to the Article 8 rights with which the ban, if obeyed, is acknowledged to interfere. It is impossible to read the judgment in any other way. Why otherwise would the Court identify, as part of the justification for what is ostensibly a blanket ban, the need to consider the question whether it is in the "public interest [to bring] a prosecution" and the requirement (under section 2(4) of the 1961 Act) for the DPP's consent to do so?"
"The court considers that the applicant's request to have access to sodium pentobarbital without a medical prescription must be examined from the angle of a positive obligation on the State to take the necessary steps to allow a dignified suicide."
The margin of appreciation.
"With regard to the substantive aspect of the complaint under Article 8, the Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (compare, among other authorities, Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V and A. and Others v. the United Kingdom [GC], no. 3455/05, § 147, ECHR 2009).
The Court considers that this principle is even more pertinent if the complaint concerns a question where the State enjoys a significant margin of appreciation."
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
Does the Policy of the DPP satisfy Convention principles of foreseeability?
"… a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
"For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.
The level of precision required of domestic legislation—which cannot in any case provide for every eventuality—depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed."
"But the practice that will be followed in cases where compassionate assistance of the kind that Ms Purdy seeks from her husband is far less certain. The judges have a role to play where clarity and consistency is lacking in an area of such sensitivity."
"The word "law" in this context is to be understood in its substantive sense, not its formal one: Kafkaris v Cyprus (2008) 25 BHRC 591, para 139. This qualification of the concept is important, as it makes it clear that law for this purpose goes beyond the mere words of the statute. As the Grand Chamber said in that case in paras 139 -140, it has been held to include both enactments of lower rank than statutes and unwritten law. Furthermore, it implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court's interpretation of it what acts and omissions will make him criminally liable: see also Gülmez v Turkey, Application no 16330/02, 20 May 2008, BAILII: [2008] ECHR 402, para 49. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary: Goodwin v United Kingdom (1996) 22 EHRR 123, para 31."
"I think it is, because ultimately it's a discretion; this is simply saying what are the sort of factors we're likely to take into account. That is different from saying: "schematically these are the cases we are going to prosecute and these are the cases we're not going to prosecute". I appreciate that the two are not at opposite ends of the continuum by any stretch of the imagination. But they are conceptually different and I have avoided any attempt I hope to be schematic about this and insisted that every case has to be decided on its own facts. These are factors to indicate to people what is likely to be taken into account one way or the other, with the overriding proviso that no one factor outweighs others. We don't simply weigh them all up and we will decide each case on a case-by-case basis. We're trying to avoid…the schematic approach does risk, unless it's very carefully constructed, undermining Parliament's intention that this should be an offence."
The Policy
"39. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed.
40. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the victim was not "under 18 years of age" does not transform the "factor tending in favour of prosecution" into a "factor tending against prosecution".
41. It may sometimes be the case that the only source of information about the circumstances of the suicide and the state of mind of the victim is the suspect. Prosecutors and investigators should make sure that they pursue all reasonable lines of further enquiry in order to obtain, wherever possible, independent verification of the suspect's account.
42. Once all reasonable enquiries are completed, if the reviewing prosecutor is doubtful about the suspect's account of the circumstances of the suicide or the state of mind of the victim which may be relevant to any factor set out below, he or she should conclude that there is insufficient information to support that factor.
Public interest factors tending in favour of prosecution
43. A prosecution is more likely to be required if:
1. the victim was under 18 years of age;
2. the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;
3. the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;
4. the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;
5. the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;
6. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;
7. the suspect pressured the victim to commit suicide;
8. the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;
9. the suspect had a history of violence or abuse against the victim;
10. the victim was physically able to undertake the act that constituted the assistance him or herself;
11. the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;
12. the suspect gave encouragement or assistance to more than one victim who were not known to each other;
13. the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
14. the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;
15. the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present;
16. the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.
44. On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.
Public interest factors tending against prosecution
45. A prosecution is less likely to be required if:
1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
2. the suspect was wholly motivated by compassion;
3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
6. the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
46. The evidence to support these factors must be sufficiently close in time to the encouragement or assistance to allow the prosecutor reasonably to infer that the factors remained operative at that time. This is particularly important at the start of the specific chain of events that immediately led to the suicide or the attempt.
47. These lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.
48. If the course of conduct goes beyond encouraging or assisting suicide, for example, because the suspect goes on to take or attempt to take the life of the victim, the public interest factors tending in favour of or against prosecution may have to be evaluated differently in the light of the overall criminal conduct."
Is the Policy in accordance with the law?
"The guidelines …. amount to the DPP saying that he will not prosecute in cases where the assistance is provided compassionately to a person who is capable of making a considered and autonomous decision.
"Second, there remains considerable uncertainty about what conduct will attract criminal prosecution. Unlike most other crimes, whether a person is liable to be prosecuted depends, primarily, on the application of non-discretionary requirements in a statute, or requirements established clearly and with precision by the common law. For the offence of assisted suicide there is now the application of the guidelines, which are by their nature only indicative — they cannot cover every factual situation — and then the exercise of a discretion. Some of those who gave evidence argued that a system with upfront safeguards and prospective approval of individual cases would be preferable, as this would remove the uncertainty currently embedded in the system.
Third, the factors for and against prosecution make a special case of health and social care professionals, making it clear they are more likely to be prosecuted for providing assistance with suicide than other members of the public. This has many consequences, including particular insecurities for doctors and other health or social care professionals whose legal position in relation to various forms of minor 'assistance' (such as providing medical records) remains unclear and may come into conflict with their duties of care and patient confidentiality."
"It is clear from his answers that the DPP was not seeking to identify types of case in which he would adopt a Policy of non-prosecution based on a consideration of the rights of the victim. That would have been to introduce a de facto form of justifiable homicide. He took the view that any such exercise should be for Parliament; and that while Parliament maintained a blanket ban on assisted suicide, he should not adopt a Policy which might appear to undermine the law. On the other hand, he recognised that there would be cases in which the public interest did not require prosecution, not because the homicide was justifiable or to encourage its repetition in other cases, but because it was a one off act of compassion. As Mr Starmer recognised, there is a conceptual difference between adopting the latter approach and carving out from the law a class of cases in which he would not enforce the law as a matter of general Policy. The factors identified in the Policy statement were intended to reflect this distinction."
"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 that person to commit suicide, that such conduct would carry with it a real risk of prosecution".
"140. Whether the risk would amount to a probability would depend on all the circumstances, but I do not believe that it would be right to require the DPP to formulate his Policy in such a way as to meet the foreseeability test advocated by Mr Havers. I consider that it would be wrong for three reasons.
141. First, it would go beyond the Convention jurisprudence about the meaning of "law" in the context of the rule of law. Even when considering the meaning of "law" in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated ( Sunday Times v UK ). This must apply even more in relation to "law" in the extended sense of meaning the law as it is liable in practice to be enforced ( Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action.
142. Secondly, it would be impractical, if not impossible, for the DPP to lay down guidelines which could satisfactorily embrace every person in Mr Havers' class 2, so as to enable that person to be able to tell as a matter of probability whether he or she would be prosecuted in a particular case. As Mr Havers rightly observed, the factors for and against prosecution may point in opposite directions. I do not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor or a combination of factors on the other side. The DPP is not like an examiner, giving or subtracting marks in order to decide whether a candidate has achieved a pass mark. The DPP has expressed his opposition to any such schematic approach for the good reason that each case ultimately involves a personal judgment.
143. Thirdly, it would require the DPP to cross a constitutional boundary which he should not cross. For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a Policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.
144. The DPP has published details of two cases in which he concluded that there was sufficient evidence to prosecute a doctor for an offence under section 2, but he decided on the particular facts that it would not be in the public interest to do so. In one case the assistance provided was minimal, consisting of the giving of some advice, and there was no evidence that the advice contributed significantly to the outcome. In the other case, involving a doctor aged 79 who had been struck off the register, the DPP concluded that "on the very particular facts of this case, the likely penalty would be a conditional discharge". These examples show that the DPP does not take a mechanistic approach to cases which involve healthcare professionals, but considers the full facts. Other individuals within Mr Havers' class 2 would cover a broad range and the facts might vary infinitely. "
"At the heart of the consideration of competing factors are three considerations: the public interest in protecting individuals' autonomy, the public interest in the protection of vulnerable individuals from abuse, and individuals' right to respect for the way in which they choose to pass the closing moments of their lives. When factors pull in different directions, these three considerations should be used to determine the relative importance of each factor. The first and third will normally outweigh the second where individuals with capacity have reached autonomous decisions, where they receive only help that they have themselves requested, and where there are no particular concerns about the exploitation or abuse of a vulnerable person."
"The Court further observes that the Government have not submitted any other material containing principles or standards which could serve as guidelines as to whether and under which circumstances a doctor is entitled to issue a prescription for sodium pentobarbital to a patient who, like the applicant, is not suffering from a terminal illness. The Court considers that this lack of clear legal guidelines is likely to have a chilling effect on doctors who would otherwise be inclined to provide someone such as the applicant with the requested medical prescription….
66. The Court considers that the uncertainty as to the outcome of her request in a situation concerning a particularly important aspect of her life must have caused the applicant a considerable degree of anguish. The Court considers that the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition…..
67. The foregoing considerations are sufficient to enable the Court to conclude that Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. There is accordingly a violation of Article 8 of the Convention in this respect."
Overall conclusion.
Lord Judge, Lord Chief Justice of England and Wales:
"A prosecution is more likely to be required if:
1. the victim was under 18 years of age;
2. the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;
3. the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;
4. the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;
5. the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;
6. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;
7. the suspect pressured the victim to commit suicide;
8. the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;
9. the suspect had a history of violence or abuse against the victim;
10. the victim was physically able to undertake the act that constituted the assistance him or herself;
11. the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;
12. the suspect gave encouragement or assistance to more than one victim who were not known to each other;
13. the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
14. the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;
15. the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present;
16. the suspect was acting on his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide."
"On the question of whether a person stood to gain (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit – financial or otherwise – from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts."
That consideration seems to me to apply equally to para. 43(13).
"1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
2. The suspect was wholly motivated by compassion;
3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
6. The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance."
"46. The evidence to support these factors must be sufficiently close in time to the encouragement or assistance to allow the prosecutor reasonably to infer that the factors remained operative at that time. This is particularly important at the start of the specific chain of events that immediately led to the suicide or the attempt.
47. These lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits."