The director of public prosecutions (DPP) could ‘disapply' statutory law to ensure that third parties are not open to criminal charges if they help certain people in assisted suicide cases, the Supreme Court heard today in the final stage of the Nicklinson and Lamb case.

The case R (on the application of Nicklinson and another) (appellants) v Ministry of Justice (respondent) has been brought to the highest court by Paul Lamb (pictured), a paralysed man from Leeds, and Jane Nicklinson, the widow of Tony Nicklinson, who died in 2012 while pursuing a legal battle to end his life without risking prosecution of others involved.  

They claim the prohibition on assisted suicide in section 2(1) of the Suicide Act 1961 is incompatible with Article 8 of the European Convention on Human Rights.

The Court of Appeal dismissed the challenge in July, on grounds that the law can be changed only by parliament, not by judges, following the High Court ruling against Nicklinson’s assisted suicide plea on 16 August 2012. Nicklinson, who suffered from locked-in syndrome, refused nutrition and medical treatment and died of pneumonia on 22 August 2012.

Representing the appellants, Paul Bowen QC of Doughty Street Chambers said that in the absence of statutory regulation, the common law defence of necessity, which states that an action that is harmful but praiseworthy is justified, would be one solution.

He said: ‘The DPP could provide a policy where cases of this kind are exempted.’ This would amend the policy to effectively ‘disapply’ the law and provide a remedy to make it compatible with Article 8.

The current policy issued by the DPP states that a person commits an offence under section 2 of the Suicide Act if he or she commits an act capable of encouraging or assisting the suicide or attempted suicide of another person.

London firm Bindmans partner Saimo Chahal, who acted for the appellants, said: ‘The appeal to the Supreme Court marks what Jane and Paul hope is the final stage of their long journey to obtain a legal remedy to escape the extraordinary and cruel consequences for them, and Tony before Paul.’

She said other countries have managed to devise laws which 'provide protection to the vulnerable and also relief to people in Paul’s situation’.

The hearing will close today, with a decision expected early next year.