The Queen(on the application of Tony Nicklinson) v Ministry of Justice  EWHC 2381 (Admin) – read judgment
Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.
Philip Havers QC of 1 Crown Office represented Martin in this case.
Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his 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.
Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention.
As Toulson LJ noted,
Barring unforeseen medical advances, neither Martin’s nor Tony’s condition is capable of physical improvement. Although they have many similarities, there are some differences in their condition. There are also differences in the orders which they seek and the ways in which their cases have been presented.” (para 4 – see our previous post for the factual background in the Nicklinson case.)
The court rejected both challenges.
The following is taken from the judicial office press summary:
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 General Medical Council and the Solicitors’ Regulation Authority 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?” (para 26)
Issue 1: Is voluntary euthanasia a possible defence to murder?
Having considered the question without reference to Article 8 of the European Convention (paragraphs 50 – 87), Toulson LJ took the view that it would be wrong for the court to depart from the “long-established position” that voluntary euthanasia is murder, however understandable the motives may be, unless the court was required to do so by article 8. Article 8 did not in his opinion so require, since there was nothing in Strasbourg law that suggested that this provision requires voluntary euthanasia to afford a possible defence to murder.
To do so would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament. (para 122)
Issue 2: Is the DPP under a legal duty to provide further clarification of his policy?
It was argued on behalf of Martin that the DPP’s policy provided the necessary degree of clarity for what he described as “class 1 helpers”, that is, family members and friends who were willing to provide assistance out of compassion. Debbie Purdy’s husband fell within that class, and so would Martin’s wife if she were willing to help. But that the policy was defective in that it failed to give adequate clarity as to another group, which he described as “class 2 helpers”, comprising individuals who were willing to act selflessly, with compassion and without suspect motives, but who had no personal connection with the individual who wished to end his or her life. “Class 2 helpers” might be professionals, carers or others. It is at once apparent that class 2 helpers are not a ubiquitous class.” (para 127)
The court did not accept this submission. It should be clear from the DPP’s statement that any 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, would be under a real risk of prosecution.
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 foreseeabilty test advocated by [Martin’s counsel]. (paras 139 – 140)
Issue 4: Are the GMC and the SRA under a legal duty to clarify their positions?
Since the court rejected the claim that the DPP is obliged by law to publish further clarification of his policy on assisted dying, it followed that Martin’s claims against the GMC and the SRA also failed.
Issue 3: Is section 2 of the Suicide Act incompatible with Article 8?
The administrative court was bound by the House of Lords’ decision on the compatibility of Section 2 with Article 8 in the case of Purdy. Even if it had been open to this court to consider the matter afresh, it would have rejected the claim in any event on the ground that the law relating to assisted suicide is an area of law where member states have a wide margin of appreciation and that in the UK this is a matter for determination by Parliament.
Issue 5: Is the mandatory sentence of life imprisonment for murder incompatible with the Convention in cases of genuine voluntary euthanasia?
The court acknowledged that there was “strong evidence” (considered by the Law Commission in its review of the law of murder) that the public does not regard the mandatory sentence of life imprisonment as appropriate in cases of genuine voluntary euthanasia, and that there have been calls for it to be changed. But it declined to rule on this issue as the question of whether it was incompatible with the Convention was “a matter which the court should decide only in a case in which it is necessary to do so.” (para 149)
Toulson LJ concluded that, whilst these cases were “deeply moving”, a decision to allow their claims would have consequences far beyond the present cases.
To do as Tony wants, the court would be making a major change in the law. To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role. These are not things which the court should do. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases. For those reasons I would refuse these applications for judicial review.” (para 150)
In her concurring judgment Macur J added:
Superfluous as it may therefore appear I nevertheless feel compelled to comment that the dire physical and emotional predicament facing Tony and Martin and their families may intensify any tribunal’s unease identified by Lord Mustill in Bland (at 887) in the distinction drawn between “mercy killing” and the withdrawal of life sustaining treatment or necessities of life. Judges of the Family Division sitting in the Court of Protection adjudicate upon applications for declarations in relation to the latter and have become well accustomed to the “balance sheet of best interests” which informs the decision of the Court. However, Mr Bowen QC does not succeed in persuading me that this process may reassure society that the development of common law for which he contends is merited by separate consideration of individual circumstances by individual tribunals of whatever stature and experience. The issues raised by Tony and Martin’s case are conspicuously matters which must be adjudicated upon by Parliament and not Judges or the DPP as unelected officers of state. (para 152)
A full analysis of this decision will follow.
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