In Nicklinson & Anor, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961 (of which we have already posted a summary) the Court of Appeal (Lord Judge LCJ, Lord Dyson MR and Elias LJ) has held that the blanket prohibitions on euthanasia and assisted suicide do not constitute a disproportionate interference with rights under Article 8 ECHR (private and family life). In addition, however, the Court held (the LCJ dissenting) that the DPP’s prosecution policy fails to provide sufficient clarity about the likelihood of prosecution of a person who helps someone else to die but has no close or emotional connection with that person.
The facts
The hearing was, in effect, an appeal from the ruling of the Divisional Court; but after the death of Mr Tony Nicklinson a new appellant was added and the status of Mrs Nicklinson changed. There were three appellants:
- AM (known as “Martin”, not his real name), aged 48, lives with his wife and his wife’s daughter. In August 2008 he suffered a brainstem stroke which left him virtually unable to move and unable to speak. He can end his own life but only with the assistance of a third party. His wife would want to be with him when he dies but does not wish to play any part in bringing about his death.
- Paul Lamb is so disabled that he cannot even commit suicide with assistance and requires a third party to terminate his life. Following his death after the hearing in the Divisional Court, Mr Nicklinson’s argument that there should be developed a common law defence of necessity available to anyone bringing about his death could no longer be advanced because it had no practical significance. Mr Lamb was therefore added as an appellant in order to keep that argument in play in the appeal.
- Mrs Nicklinson was a party to the proceedings both as administratrix of the estate of her late husband and, since the hearing below, as a party in her own right – on the basis that the ECtHR had held in Koch v Germany (2013) 56 EHRR 6 that the partner of the person wishing to die might claim that his or her own Article 8 rights were directly infringed as a result of denying a remedy to the other partner, at least where there was an exceptionally close relationship between the two and the partner had been actively involved in the realisation of that person’s wish to end his or her life.
All three contended that, as a matter both of common law and of Strasbourg jurisprudence, anyone who assisted a person to bring about his or her death ought not to be subjected to criminal consequences. Moreover, “Martin” argued that even if the person assisting him to commit suicide might be subject to criminal prosecution, the Director of Public Prosecutions (who alone decides whether or not to prosecute) was obliged to set out in greater detail than hitherto how his discretion might be exercised and that Convention law required that he and anyone assisting him should be able to assess the risk of prosecution with some confidence.
The appellants all submitted that their fundamental rights – both at common law and under the ECHR – were engaged and that “as guardians of those rights, the judges cannot simply refuse to resolve the conflicting arguments that arise on the grounds that they raise difficult ethical and moral issues better suited to resolution by Parliament” [para 4]. They accepted that the laws prohibiting assisted suicide and euthanasia were aimed at the legitimate objective of safeguarding the lives of the weak and vulnerable who, without protection, might feel pressured into agreeing to die. However, they submitted that the prohibitions were disproportionate because they extended too far; it was not necessary for the law to protect those who, like the appellants, were not vulnerable and not subject to improper pressure to hasten their death [para 36].
The current law
The position at common law was previously that both euthanasia and suicide constituted the offence of murder. S 1 of the Suicide Act 1961 removed suicide from the scope of the criminal law: “The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated”. However, the current understanding is still that anyone assisting another to end his or her life will be committing an offence of assisting suicide if they merely help that person to take his or her own life or the offence of murder if they actually terminate life themselves [para 1]. In R (On the Application of Pretty) v DPP [2001] UKHL 61 Lord Bingham pointed out at para 35 that the decriminalisation of suicide had fallen short of establishing a right to commit suicide:
“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.”
Had Parliament intended to create a right to commit suicide, it would have had to permit others who encouraged or assisted someone to take that step to be free from criminal sanctions – but far from it doing so, s 2(1) of the 1961 Act created a specific offence of assisting suicide, triable on indictment and subject to a maximum 14 years’ imprisonment. The Coroners and Justice Act 2009 amended s 2(1) of the 1961 Act but merely to clarify it.
As a result of the decision of the House of Lords in R (Purdy) v DPP [2009] UKHL 45 the DPP was required to issue a detailed a Policy statement about the factors he would take into account when considering whether or not to exercise his discretion in favour of prosecuting [Nicklinson para 24]. Euthanasia, however, involved not merely assisting another to commit suicide but actually bringing about the death of that other. At common law euthanasia was murder and the 1961 Act had no bearing on that offence [para 25]. It was not, however, unlawful for a doctor to prescribe medical treatment which would necessarily hasten death where the purpose was to relieve pain and suffering: “the double effect principle” [para 26].
As to Article 8 ECHR, the right to respect for “private and family life” under 8(1) was qualified and could be the subject of interference in the circumstances described in 8(2). It was common ground that Article 8(1) was engaged; the House of Lords had confirmed in Purdy that that was the effect of the ECtHR decision in Pretty v United Kingdom (2002) 35 EHRR 1. Subsequent Strasbourg decisions had confirmed that the right encompassed the right to determine how and when to die so as to avoid a distressing and undignified end to life, provided the individual was of sound mind and able to make a freely-informed judgment: see Haas v Switzerland (2011) 53 EHRR 33 para 51, Koch v Germany (2013) 56 EHRR 6 para 52 and Gross v Switzerland [2013] ECHR 429.
“Accordingly, the critical question is whether the interference with the Article 8(1) right resulting from the legal prohibitions on providing assistance to those wishing to die meets the criteria laid down in Article 8(2), the onus being on the respondent to show that it does. This issue is of the first importance to these appellants. If the impediment is created by statute, as is the case with assisted suicide, and the court finds that it is a disproportionate interference, the court must if possible read down the statute so as to give effect to Convention rights as required by section 3 of the Human Rights Act; if that is not possible it will have to grant a declaration of incompatibility as required by section 4. Where the interference is a common law rule (or the lack of one) the court must amend the common law so as to achieve the necessary vindication of the right” [para 34].
The issues
The issues in the appeal were as follows:
- whether the common law should be developed to provide a defence to murder where that took the form of euthanasia, at least in the circumstances which Mr Lamb was facing and which Mr Nicklinson had faced before his eventual death;
- whether the current absolute prohibition on assisted dying was compatible with Article 8 ECHR and the margin of appreciation afforded to states parties or a disproportionate interference with the rights to private and family life under Article 8(1) ECHR; and
- (advanced by “Martin”) whether the DPP’s Policy on prosecution satisfied the Convention principles of proportionality and was “in accordance with the law” for the purposes of Article 8(2).
The judgment
For the purposes of the judgment, the Court accepted the distinction drawn by counsel between the “class 1 case”, in which the person wishing to die (i) has a friend or family member willing to arrange for the use of the services of Dignitas; (ii) the helper has emotional ties to the victim and acts in good faith out of compassion; and (iii) there are no particular grounds for concern about the motives of the helper or about the vulnerability of the person being helped and the “class 2” case, in which the helper does not have any close or emotional connection with the victim. Some class 2 helpers might reasonably expect remuneration to provide their services as carers and some might be professionally qualified, for example a doctor who provides a report in connection with the victim’s application to Dignitas.
The blanket prohibitions
As noted at the outset, the Court held unanimously that the blanket prohibitions on euthanasia and assisted suicide were not a disproportionate interference with Article 8 rights and dismissed that part of the appeal, for various reasons. The submission that the common law should recognise a defence of necessity to apply to certain cases was unsustainable because:
- there were circumstances when rights of autonomy and dignity may have to yield to other rights or interests – and in that connexion the Court pointed out that “the sanctity of life is if anything an even more fundamental principle of the common law, reflected in the unqualified right to life found in Article 2 of the Convention” [para 54];
- there was no right to commit suicide: s 1 of the 1961 Act “can more accurately be described as conferring an immunity from the criminal process for those who actually commit suicide. A fortiori, if there is no right to kill yourself, there can be no right, fundamental or otherwise, to require the State to allow others to assist you to die or to kill you” [para 55];
- whether or not there should be a defence of necessity was a matter for Parliament, not for the Court [para 56]; and
- any defence provided to those who assist someone to die would have to apply both to euthanasia and to assisted suicide – which raised the question: “how can the courts develop a defence to assisted suicide when Parliament has stated in unequivocal terms that it is a serious criminal offence carrying a maximum sentence of 14 years’ imprisonment” [para 64].
As to the possible violation of Article 8 rights, the Court held that the blanket ban was
“… a proportionate interference with Article 8 rights and neither Purdy in the House of Lords nor subsequent Strasbourg cases cast any doubt on that conclusion. Given the authoritative ruling in Pretty, the Divisional Court was right to say that they were bound by that decision; and so are we” [para 105].
The blanket prohibitions on euthanasia and assisted suicide were not, therefore, disproportionate [para 114].
The Policy of the DPP and the Convention principles of foreseeability
Dyson MR and Elias LJ started from the basic principle that the Strasbourg jurisprudence provided that the law must satisfy a certain measure of foreseeability, as enunciated in Sunday Times v United Kingdom (1979) 2 EHRR 245 at para 49:
“… 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” [para 115].
Moreover, in para 117 they noted that the law must be “sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures”, citing Gulmez v Turkey (Application No 16330/02), judgment 20 May 2008 at para 49.
Allowing the appeal by “Martin”, their Lordships explained that they were unpersuaded that the DPP should not be required to provide any further clarification of the Policy. They agreed that the jurisprudence allowed a degree of flexibility as to the way in which the “in accordance with law” requirement might be satisfied; but “there are limits to what degree of flexibility is acceptable” and “excessive flexibility is inimical to the principle that the consequences of a given course of conduct must be foreseeable to a degree that is adequate or reasonable” [para 143].
They accepted that it would be virtually impossible for the DPP to lay down guidelines to cover every conceivable class 2 case (ie, those cases that involved helpers external to the family) but
“it is not impossible or impractical to amend the Policy so as to make its application in relation to class 2 cases more foreseeable than it currently is … [I]t is not for the court to prescribe how the Policy should achieve this. That is a matter for the DPP. But the Policy allows a reasonable degree of foreseeability in relation to class 1 cases. We do not see why the DPP cannot do more in relation to class 2 cases” [para 144].
The Lord Chief Justice’s dissent
In relation to “Martin”, Lord Judge regarded the matter of the DPP’s Policy as a constitutional issue of separation of powers. He emphasised that Parliament had decided that assisting a suicide was an offence and:
“Parliament represents the conscience of the nation. Judges, however eminent, do not: our responsibility is to discover the relevant legal principles, and apply the law as we find it. We cannot suspend or dispense with primary legislation. In our constitutional arrangements such powers do not exist” [para 155].
The legislation criminalising assisting suicide was recent and unequivocal; and even if it were constitutionally permissible (which it was not) for judges to intervene on the basis that Parliament had failed to address a desperately urgent social need, Parliament had not in fact done so in this particular case [para 156]. Moreover, the jurisprudence of the ECtHR underlined that whether or not assisted suicide should or should not be decriminalised depend on the arrangements in the individual state [para 162]. The requirement that the DPP should consent to a prosecution for an offence under s 2(4) of the 1961 Act did not create an extra-parliamentary regime which, directly or indirectly, might be used to undermine the criminalisation of assisting suicide [para 163]. Furthermore, in Purdy, which was binding on the Court of Appeal,
“…the House of Lords ordered the DPP ‘to promulgate an offence-specific Policy identifying the facts and circumstances which he would take into account in deciding, in a case such as Mrs Purdy’s exemplifies, whether he ought to consent to a prosecution under s 2(1) of the 1961 Act’. The DPP was not directed to tell Mrs Purdy what his decision would or would be likely to be if, at some future date her husband provided the necessary assistance to enable her to commit suicide. The direction was limited to the provision of Policy guidance in the specific circumstances which obtain” [para 165].
The DPP’s Policy of 25 February 2010 had been issued after a lengthy, detailed analysis of the responses to his consultation and had been informed by those responses:
“With great respect, we cannot keep ordering and re-ordering the DPP to issue fresh guidelines to cover each new situation. Prosecutorial Policy decisions must remain fact specific and certainty about the Policy which can be no more than indicative of the eventual decision if a crime is committed is not to be equated with the certainty required of provisions which create or identify criminal offences” [para 179].
He did not believe that the Policy as promulgated led to the anomaly that those brought in from outside the family circle who did no more than replace the family in supporting the “victim” to achieve his or her desired suicide were more likely to be prosecuted than a family member. The stranger who was not profiteering but providing services which if provided by the spouse would not attract a prosecution was most unlikely to be prosecuted. The Policy was therefore sufficiently clear to enable “Martin”, or anyone assisting him, to make an informed decision about the likelihood of prosecution [para 186]. He would therefore have dismissed the appeal in its entirety.
Comment
To describe the three appeals as extraordinarily difficult is a major understatement. They are all classic examples of a situation where, for many of us, there is an immediate conflict between gut instinct and rational appraisal: sympathy for the victim accompanied by a nagging feeling that it is not for the courts to set aside statute law.
On balance (and with great respect to Dyson MR and Elias LJ) we are both inclined to agree with the Lord Chief Justice’s dissenting view that judges “cannot suspend or dispense with primary legislation” – which, in effect, is what “Martin” was asking them to do; and the fact that the issue was revisited by Parliament as recently as 2009 when it passed the Coroners and Justice Act with a clarificatory amendment to s 2(1) of the 1961 Act tends to support that position.
Furthermore, behind all this are the larger questions as to whether legalising assisted suicide might lead to someone who is terminally-ill being pressured into being “assisted” and whether we place a greater value on the uniqueness of personhood by accepting that there should be individual autonomy about when to die or by concluding that in no circumstances should a life be ended prematurely.
In November we noted the response on behalf of the Church of England by its Mission and Public Affairs Council to a consultation by NHS Blood and Transplant. NHSB&T was seeking views on how its target of 50 per cent growth in deceased organ donation by 2013 might be achieved; and the Mission and Public Affairs Council noted in response that some of the possible options canvassed raised wider issues with major ethical, social or legal implications (this is, after all, a blog about law and religion). If there are no simple answers to proposals such as a “soft opt-out” scheme for organ donation, there are certainly none to the moral questions raised by assisted suicide.
But in any case, that cannot be the end of the story: it is inevitable that the issue will come up again in Parliament – though we suspect that, for the foreseeable future, legislators are going to shy away from any significant change in the law. And in any event, the DPP will presumably appeal the decision on his Policy to the Supreme Court, so the strong likelihood is that all the arguments will be rehearsed yet again.
Rosalind English posted a short summary of the case on UKHRB on 31 July with the promise of an analysis in due course – which we await with interest.