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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nicklinson, R (on the application of) v Ministry Of Justice [2012] EWHC 2381 (Admin) (16 August 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/2381.html Cite as: [2012] WLR(D) 248, [2012] EWHC 2381 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ROYCE
and
MRS JUSTICE MACUR
____________________
THE QUEEN ON THE APPLICATION OF TONY NICKLINSON |
Claimant |
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- and - |
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MINISTRY OF JUSTICE |
Defendant |
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DIRECTOR OF PUBLIC PROSECUTIONS JANE NICKLINSON |
Interested Parties |
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And Between: |
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THE QUEEN ON THE APPLICATION OF AM |
Claimant |
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- and - |
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(1) DIRECTOR OF PUBLIC PROSECUTIONS (2) THE SOLICITORS REGULATION AUTHORITY (3) THE GENERAL MEDICAL COUNCIL |
Defendants |
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AN NHS PRIMARY CARE TRUST |
Interested Party |
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THE ATTORNEY GENERAL CNK ALLIANCE LTD (CARE NOT KILLING) |
Interveners |
____________________
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 AM
John McGuinness QC (Instructed by CPS Appeals Unit) for the Director of Public Prosecutions
Timothy Dutton QC and Miss M Butler (instructed by Bevan 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
Charles Foster and Benjamin Bradley (Instructed by Barlow Robbins LLP) for the CNK Alliance Ltd
Hearing dates: 19-22 June 2012
____________________
Crown Copyright ©
Lord Justice Toulson:
Introduction
Martin
"6. Martin is 47 years old. He lives with his wife and his wife's daughter. In August 2008 he suffered a brain stem stroke. This has left him virtually unable to move. He cannot speak. He can communicate only through small movements of his head and eyes and, very slowly, by using a special computer that can detect where on a screen he is looking.
7. He is totally dependant on others for every aspect of his life. He lives in an adapted room in his family home. He spends almost all of his time in bed, although he can be taken out of the house. His care is provided by his wife…and by full-time carers provided by his local NHS Primary Care Trust.
8. Martin is fed by people putting food into his mouth. He is able to swallow. His medication goes through a tube through his abdominal wall into his stomach. He wears a convene (a sheath over his penis, attached to a tube, into which he urinates). He defecates into special underwear. Adjoining the room in which he lives, he has a specially adapted bathroom in which he can be washed.
9. He is, it is understood, not likely to die of natural causes in the near future.
10. Martin has a strong, settled and reasoned wish to end his life. He loves his family, and enjoys spending time with them, and he likes to read. But he finds his life and his condition following his stroke to be undignified, distressing and intolerable. He does not wish to go on living like this. And, because he finds his current life unbearable, he wishes to end his life as soon as possible."
Tony
"My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what's left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time."
"All this current activity, making documentary and writing articles, has reminded me of how much I want my life to end. I know you said this hearing is all about legal argument, but is it possible for you to remind the judges of a few things? I have wanted my life to end since 2007 so it is not a passing whim. I know consent makes no difference but the doctor has it anyway. Legal arguments are fine but they should not forget that a life is affected by the decision they come to. A decision going against me condemns me to a life of increasing misery. I have no doubt the judges have heard it all before, but I simply wanted to get it off my chest."
"1. A declaration that it would not be unlawful, on the grounds of necessity, for Mr Nicklinson's GP, or another doctor, to terminate or to assist the termination of Mr Nicklinson's life. By way of preliminary issue, the claimant seeks a declaration that the common law defence of necessity is available to a charge of murder in a case of voluntary active euthanasia and/or to a charge under s2(1) of the 1961 Act in the case of assisted suicide provided
(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;
2. Further or alternatively, a declaration that the current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson's right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide."
Issues
1. Is voluntary euthanasia a possible defence to murder?
2. Is the DPP under a legal duty to provide further clarification of his policy?
3. Alternatively, is section 2 of the Suicide Act incompatible with article 8 in obstructing Martin or Tony from exercising a right in their circumstances to receive assistance to commit suicide?
4. Are the GMC and the SRA under a legal duty to clarify their positions?
5. Is the mandatory life sentence for murder incompatible with the Convention in a case of genuine voluntary euthanasia?
Suicide and euthanasia at common law
Suicide Act 1961
"The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated."
"Both the Law Commission and an independent review identified confusion about the scope of the law on assisted suicide…[Section 59] does not substantively change the law, but it does simplify and modernise the language of section 2 of the Suicide Act 1961 to increase public understanding and to reassure people that the provision applies as much to actions on the internet as to actions off-line." (487 HC Official Report (6th Series) Col 35)
"(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.
(1A) The person referred to in subsection (1)(a) need not be a specific person (or class of person) known to, or identified by, D.
(1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs.
(1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.
(2) If on the trial of an indictment for murder or manslaughter of a person it is proved that the deceased person committed suicide, and the accused committed an offence under subsection (1) in relation to that suicide, the jury may find the accused guilty of the offence under subsection (1).
…
(4) …no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."
"If D arranges for a person ("D2") to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it."
DPP's policy about prosecution for assisted suicide
"If you have that factor in as a factor suggesting you won't prosecute, what that means is in Case A where all the facts are the same as Case B and the only difference is that the person who committed suicide had some terminal illness, severe or incurable disease, that will be the factor that tilts it. From our perspective, that suggests to us that we are less well protected because you wouldn't prosecute if I fell within category A but you would prosecute somebody else."
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.
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.
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."
European Convention
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall be not regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in the defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"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."
Parliamentary proposals for changing the law
Is voluntary euthanasia a possible defence to murder?
"However, we have decided that a recommendation for a specific partial defence of "mercy" killing should await a further and more detailed consultation exercise specifically concentrating on the issue. We quite simply did not have the time that we would have needed to conduct a full consultation on such an important issue."
"All "mercy" killings are unlawful homicides
7.4 The law of England and Wales does not recognise either a tailor-made offence of 'mercy' killing or a tailor-made defence, full or partial, of 'mercy' killing. Unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide pact, if the defendant ("D") intentionally kills the victim ("V") in the genuine belief that it is in V's best interests to die, D is guilty of murder. This is so even if V wished to die and consented to being killed.
7.5 D is entitled to be convicted of manslaughter rather than murder if D proves that:
(1) he or she was suffering from diminished responsibility at the time of killing V;
(2) he or she was a party to an agreement with V which had as its object the death of both of them, irrespective of whether each was to take their own life, and it was D's intention, when entering into the agreement, to die pursuant to the agreement.
7.6 The current law does not recognise the 'best interests of the victim' as a justification or excuse for killing. What it does, instead, is to acknowledge, to a very limited extent, that the consent of V can be relevant in the context of suicide pacts. However, the consent of V does not operate to justify the actions of the survivor of the suicide pact. Rather, combined with the fact that the survivor intended to kill him or herself as part of a pact, V's consent partially excuses the actions of the survivor.
7.7 Under the current law, the compassionate motives of the 'mercy' killer are in themselves never capable of providing a basis for a partial excuse. Some would say that this is unfortunate. On this view, the law affords more recognition to other less, or at least no more, understandable emotions such as anger (provocation) and fear (self-defence). Others would say that recognising a partial excuse of acting out of compassion would be dangerous. Just as a defence of necessity "can very easily become simply a mask for anarchy", so the concept of 'compassion' - vague in itself - could very easily become a cover for selfish or ignoble reasons for killing, not least because people often act out of mixed motives."
"…we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder."
"However problems of mercy killing, euthanasia, and assisting suicide should be addressed 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."
"7. Murder.
It has been established for centuries that consent to the deliberate infliction of death is no defence to a charge of murder. Cases where the victim has urged the defendant to kill him and the defendant has complied are likely to be rare, but the proposition is established beyond doubt by the law on duelling, where even if the deceased was the challenger his consent to the risk of being deliberately killed by his opponent does not alter the case.
8. "Mercy Killing".
Prosecutions of doctors who are suspected of having killed their patients are extremely rare, and direct authority is in very short supply. Nevertheless, that "mercy killing" by active means is murder was taken for granted in the directions to the jury in R v Adams (unreported), 8 April 1957, R v Arthur (unreported), 5 November 1981 and R v Cox (unreported), 18 September 1992, and was the subject of direct decision by an appellate court in Barber v Superior Court of the State of California, 195 Cal. Rptr. 484 and has never so far as I know been doubted. The fact that the doctor's motives are kindly will for some, although not for all, transform the moral quality of his act, but this makes no difference in law. …
9. Consent to "mercy killing".
So far as I am aware no satisfactory reason has ever been advanced for suggesting that it makes the least difference in law, as distinct from morals, if the patient consents to or indeed urges the ending of his life by active means. The reason must be that, as in the other cases of consent to being killed, the interest of the state in preserving life overrides the otherwise all-powerful interests of patient autonomy."
"English law admits of no defence of mercy killing or euthanasia."
"I must however, stress…that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring the patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding the treatment or care, or even in certain circumstances in which…the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see R v Cox (unreported), 18 September 1992. So to act is 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. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but 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. It is true that the drawing of this distinction may lead to a charge of hypocrisy…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. "
"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.
For these reasons, it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament. The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society."
"I will…abstain from debate about whether the proposed conduct will amount to euthanasia. The word is not a term of art, and what matters is not whether the declarations [that the hospital might lawfully discontinue treatment] authorise euthanasia, but whether they authorise what would otherwise be murder. ….The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called "mercy killing" where active steps are taken in a medical context to terminate the life of a suffering patient, and a situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life. The acute unease which I feel about adopting this way through the legal and ethical maze is I believe due in an important part to the sensation that however much the terminologies may differ the ethical status of the two courses of action is for all relevant purposes indistinguishable. … Still, the law is there and we must take it as it stands.
…
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 of a sound procedural framework within which the rules can be applied to individual cases. …Meanwhile, the present case cannot wait. We must ascertain the current state of the law and see whether it can be reconciled with the conduct which the doctors propose."
"According to Sir James Stephen there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.
Finally, the doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied them."
"If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life. This is not because there is a special defence for medical men but because no act is murder which does not cause death. We are not dealing here with the philosophical or technical cause, but with the commonsense cause. The cause of death is the illness or the injury, and the proper medical treatment that is administered and that has an incidental effect on determining the exact moment of death is not the cause of death in any sensible use of the term. But…no doctor, nor any man, no more in the case of the dying than of the healthy, has the right deliberately to cut the thread of life."
"Mary uses Jodie's heart and lungs to receive and use Jodie's oxygenated blood. This will cause Jodie's heart to fail and cause Jodie's death as surely as a slow drip of poison. How can it be just that Jodie should be required to tolerate that state of affairs? One does not need to label Mary with the American terminology which would paint her to be "an unjust aggressor", which I feel is wholly inappropriate language for the sad and helpless position in which Mary finds herself. I have no difficulty in agreeing that this unique happening cannot be said to be unlawful. But…I can see no difference in essence between…resort to legitimate self-defence and the doctors coming to Jodie's defence and removing the threat of fatal harm to her presented by Mary's draining her life blood. The availability of such a plea of quasi-self-defence, modified to meet the quite exceptional circumstances nature has inflicted on the twins, makes intervention by the doctors lawful."
"There is on the facts of this case some element of protecting Jodie against the unnatural invasion of her body through the physical burden imposed by her conjoined twin. That element must not be overstated. It would be absurd to suggest that Mary, a pitiful and innocent baby, is an unjust aggressor…Nevertheless, the doctors' duty to protect and save Jodie's life if they can is of fundamental importance to the resolution of this appeal."
"It is in reality a dispensing power exercised by the judges where they are brought to feel that obedience to the law would have endangered some higher value. Sir William Scott said in The Gratitudine (1801) 165 ER at 459:
"The law of cases of necessity is not likely to be well furnished with precise rules; necessity creates the law; it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal. It is not to be considered a matter of surprise, therefore, if much instituted rule is not to be found on such subjects." "
"As chapter 2 of this report demonstrated, the evidence the Commission received presented a huge range of extremely powerful and nuanced arguments representing the many ethical dimensions encompassed by the assisted dying debate. These ethical principles included the value of individual autonomy, the "intrinsic" or "self-determined" value of human life, the importance of a compassionate response to suffering, the need to protect vulnerable people, the importance of fighting societal discrimination towards disabled people and doctors' (in some people's view) conflicting responsibilities to relieve suffering and preserve life. As the evidence presented in chapter 2 demonstrated, we found on inspection of the evidence that every single ethical principle that was put forward has its equally vociferous opposite."
"Where Parliament fears to tread it is not for the courts to rush in."
"I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. …And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty."
"Judges have no power to create new criminal offences; nor in their Lordships' opinion, for reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships' view, be made only by Parliament. Whilst their Lordships strongly uphold the right and indeed the duty of judges to adapt and develop the principles of the common law in an orderly fashion they are equally opposed to any usurpation by the courts of the functions of Parliament."
"It is hard, when discussing the propriety of judicial law-making, to reason conclusively from one situation to another…I believe, however, that one can find in the authorities some aids to navigation across an uncertainly charted sea. (1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while the leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty."
"It was not the purpose or objective of the Commission to decide whether the law should be changed to make assisted dying legally possible…It is for Parliament to decide on behalf of the people whether it would be in the interests of society as a whole to implement a safeguarded system that would provide this option, and there is a clear need for more inclusive public debate to inform this process. In particular, the evidence the Commission has received has made it clear that the issue of assisted dying cannot be viewed in isolation from the need for adequate health and social care, or from the considerable concerns from many people that vulnerable people could be put at risk of abuse or indirect social pressure to end their lives, if such an option was to become available. Therefore if an assisted dying framework is to be implemented in the future it must have these concerns at its heart and its purpose must be viewed as providing people with access to high quality end of life care, and protecting vulnerable people from any kind of social pressure at the same time as providing people with greater choice and control over how and when they die."
Article 8
R (Pretty) v DPP [2001] UKHL 61, [2002] 1 AC 800
"While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the Convention by failing to permit it or would be in breach of the Convention if it did not permit it. Such a contention is in my opinion untenable."
"The power to dispense with and suspend laws and the execution of laws without the consent of Parliament was denied to the Crown and its servants by the Bill of Rights 1689 (1 Will & Mary, sess 2, c 2)."
Pretty v United Kingdom (2002) 35 EHRR 1
"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. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or medial decrepitude which conflict with strongly held ideas of self and personal identity.
…
67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8."
"70. According to the Court's established case law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is "necessary in a democratic society", the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.
…
74. …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.
…
76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has 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…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.
77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. 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."
1. A blanket ban on assisted suicide was not disproportionate in the view of the court.
2. Nor was it "arbitrary" to reflect the importance of life by prohibiting assisted suicide, while providing a system of enforcement which allowed due regard to be given in each particular case, to the public interest, the requirements of deterrence and such like.
3. Strong objection could be raised against any claim by the executive to exempt in advance any individual or classes of individuals from the operation of the law. (Emphasis added)
R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345
"The Director has no power to adopt a policy that he will not prosecute, but he does have power to adopt and publish a policy setting out the most significant factors that would guide his decision."
"My Lords, 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."
"…that in certain cases, not merely will it be appropriate not to prosecute, but a prosecution under section 2(1) would actually be inappropriate." (Original emphasis)
"…Strasbourg clearly appears to have recognised that in certain circumstances it will be wrong in principle to prosecute A for assisting B to commit suicide, because to do so would unjustifiably deter those in A's position from enabling those in B's position to exercise their article 8(1) right to self determination…"
"What to my mind is needed is a custom-built policy statement indicating the various factors for and against prosecution, …, factors designed to distinguish between those situations in which, however tempted to assist, the prospective aider and abettor should refrain from doing so, and those situations in which he or she may fairly hope to be, if not commended, at the very least be forgiven, rather than condemned, for giving assistance."
Haas v Switzerland (2011) 53 EHRR 33
"The Convention and the Protocols thereto must be interpreted in the light of the present-day conditions…In Switzerland, under art 115 of the Criminal Code, incitement to commit or assistance with suicide are only punishable where the perpetrator of such acts commits them for selfish motives. By comparison, the Benelux countries in particular have decriminalised the act of assisting suicide, but only in well-defined circumstances. Certain other countries only allow "passive" acts of assistance. The vast majority of Member States, however, appear to place more weight on the protection of an individual's life than on the right to end one's life. The Court concludes that the states have a wide margin of appreciation in that respect."
The effect of the Strasbourg authorities
"The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for the national authorities, including national courts particularly, to decide in the first instance how the principles, expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions."
Is the DPP under a legal duty to provide further clarification of his policy?
"…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 unobtainable. 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."
"The requirement of foreseeability will be satisfied where the person is able to foresee, if need be with the 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."
"The approach we took was this: the law makes it an offence to assist suicide. It then obviously gives the prosecutor discretion. We thought that if the law remains unamended and in that form, it was important to distinguish between as it were one off acts of support or compassion and those that were engaged in the delivery of professional services or a business that would routinely…bring them into conflict with the law, because of the broad prohibition on assisted suicide. I mean, I appreciate not everyone would agree with that distinction but if you do have a broad based offence, it's one thing to say, "this is as it were, a one-off compassionate act" compared with "this is the provision of a service or a business" which inevitably involves a breach of the law and I think …if we didn't put that factor in, Parliament might say we are really undermining the prohibition on assisted suicide."
"We want to be transparent about the factors, hence the policy, and apply it on a case by case basis. We want to avoid being too schematic because it's not for me or the CPS to determine what the law should be. The law is clear and we're simply being given discretion in individual cases…What I think would be wrong, what I want to resist is saying: "schematically this is what we're trying to achieve", because that is not for me."
"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."
"These guidelines are exceptional as they prescribe the circumstances in which the public interest test will be used, not with a view to deal with the exceptional or unexpected case, but in order to deal with the most common manifestation of the conduct that is criminalised by section 2(1) of the Suicide Act 1961. There is no doubt that the DPP has a public interest discretion not to bring a prosecution even if he is satisfied that the evidential test is satisfied. But that public interest test is normally used to deal with the exceptional individual case. By contrast, the guidelines provide a reason not to prosecute that applies equally to all. Or, to put it another way, they take a whole identifiable category of case out the ambit of the criminal justice process.
Currently, the decision about whether the law should be changed, in a contested area (contested in the sense that there are strong views for and against law change) is not being made by the law-makers (Parliament), but by the DPP. He has done his best in consulting the public and reflecting what he believes to be society's wishes in relation to prosecutions. However, the effect of being forced to issue guidelines by the judgment of the House of Lords in the Purdy case means the DPP has to decide on the extent of the law, and to whom it applies. The change is therefore piecemeal; it comes after no coherent public debate, and is driven by a response to individual cases rather than by a wider strategic consideration of the aims of the policy that society wishes to adopt.
…
Some of the evidence that was put to the Commission argued that the DPP policy has brought sufficient resolution to the issue of assisted suicide…
However, a much larger body of evidence put to the Commission highlighted the many problems with this approach of legal prohibition of assisted suicide combined with a lenient policy on prosecution, as outlined in the DPP policy. First, the question of when cases of assisted suicide should be prosecuted is now being determined by the exercise of a discretion by a well-meaning official, the DPP, applying general guidelines rather than the letter of the law, subject to a discretion not to prosecute in exceptional cases. Thus the question of whether a category of persons will be prosecuted depends on the view of one official and that view could change when the DPP changes. The essence of the rule of law is that our society is "ruled by laws not men". The situation reached with the guidelines is that this basic tenet of the rule of law is broken. "
"There is a growing confusion – perhaps it was there already – between the guidelines which are the DPP's policy statement on when it is and is not thought appropriate to prosecute and the factors that he will consider, and the substantive law that is set out in section 2 of the Suicide Act. The two are quite different."
GMC and SRA
Is section 2 of the Suicide Act incompatible with article 8?
Is the mandatory sentence of life imprisonment for murder incompatible with the Convention in cases of genuine voluntary euthanasia?
Conclusion
Mr Justice Royce:
Mrs Justice Macur: