Suicide - Liability for complicity in another's suicide

R (on the application of Nicklinson) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions and others: QBD (Admin) (Lord Justice Toulson, Mr Justice Royce, Mrs Justice Macur): 16 August 2012

The instant proceedings concerned two separate applications which were heard together as they were based on similar circumstances, namely that the claimants had suffered catastrophic physical disabilities.

Their mental processes were unimpaired, in the sense that they were fully conscious of their condition. The claimants suffered from ‘locked-in syndrome’.

In the first action, the claimant (N) had suffered a stroke and was paralysed below the neck and unable to speak. He was unable to move anything except his head and eyes. He required carers to help him dress, eat and wash. N wished to be able to choose to end his life by voluntary euthanasia. He sought a declaration that it would not be unlawful, on the grounds of necessity, for a general practitioner or other doctor to terminate or to assist the termination of his life. He sought a declaration that the common law defence of necessity was available to a charge of murder in a case of voluntary active euthanasia and/or to a charge under section 2(1) of the Suicide Act 1961 in the case of assisted suicide, and a declaration that the current law of murder and/or assisted suicide was incompatible with his right to respect for private life under article 8 of the European Convention on Human Rights.

The claimant in the second action (AM) had suffered a brain stem stroke, which had left him virtually unable to move. He was able to communicate only through small movements of his head and eyes. He was totally dependent on others for every aspect of his life. The primary relief AM sought was that the director of public prosecutions (DPP) clarified his published policy so that other people, who may assist the second claimant to commit suicide, would know whether they would be more likely than not to face prosecution. The DPP’s policy was published following the decision in R (on the application of Purdy) v DPP ([2009] 4 All ER 1147) and listed factors favouring prosecution and factors tending against prosecution. Both claimants issued proceedings by way of judicial review. They were determined that they wished to die with dignity and without further suffering, but their condition made them incapable of ending their own lives.

The issues for determination were, inter alia, first, whether voluntary euthanasia was, in certain circumstances, a possible defence to murder. Second, whether the DPP had a legal duty to provide further clarification on his policy with regard to the commission of assisted suicide. Third, whether section 2 of the 1961 act was incompatible with article 8 of the convention in obstructing the claimants from exercising a right, in their circumstances, to receive assistance to commit suicide. The applications would be dismissed.

(1) It was for parliament to decide whether to change the law on euthanasia. The subject was profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. A court hearing an individual case, concentrating rightly and inevitably on the dire circumstances of the claimant, had not been in a position to decide such broad questions, but its decision would create a precedent which would affect many other cases. It had been one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy were for parliament.

A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would have been to introduce a major change in an area where there were strongly held conflicting views, where parliament had rejected attempts to introduce such a change and where the result would have been to create uncertainty rather than certainty. To have done so would be to usurp parliament. Further, it had been hard to imagine that parliament would legalise any form of euthanasia without a surrounding framework regarding end-of-life care and without procedural safeguards. It would have been impossible for the court to introduce, still less monitor, any such regime. Accordingly, it would be wrong for the court to depart from the long-established position that voluntary euthanasia was murder.

There was no authority from the European Court of Human Rights which supported the proposition that a blanket ban on voluntary euthanasia was incompatible with article 8 of the convention. The only general principles which the Strasbourg court had expounded had been that the right of an individual to decide how and when to end his life was an aspect of the right to respect for private life within article 8 of the convention, and that signatory states had a wide margin of appreciation in that area. Accordingly, it would have been wrong for the court to hold that article 8 of the convention had required voluntary euthanasia to afford a possible defence to murder (see [75], [76], [78], [79], [84]-[87], [118], [121], [122], [150]-[152] of the judgment).

(2) The DPP had done what had been required of him by the decision in Purdy and it would have been wrong to have required him to do more. From the DPP’s policy statement, it had been clear to a person who, in the course of his profession, had 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 (see [138], [139] of the judgment).

(3) In Pretty v United Kingdom (Application 2346/02) [2002] All ER (D) 286, the Strasbourg court had agreed with the House of Lords that the blanket ban on assisted suicide was not incompatible with article 8 of the convention, but its reasoning had included reference to the existence of a professional discretion about which the House of Lords held in Purdy that further clarification by the DPP had been required. The issue of the compatibility of section 2 of the 1961 act with article 8 of the convention had been determined at the highest level, subject to the argument that further clarification by the DPP had been required. However, if it had been open to the court to consider the matter afresh, the claim would have been rejected in any event as the law relating to assisted suicide was an area of law where member states had had a wide margin of appreciation, and in the UK that was a matter for determination by parliament (see [146], [148] of the judgment).

Paul Bowen QC (instructed by Bindmans) for N; David Perry QC and James Strachan (instructed by the 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 the Crown Prosecution Service) for the DPP as defendant in the second proceedings and interested party in the first proceedings; Timothy Dutton QC and Marianne 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 the Treasury Solicitor) for the first interested party, the attorney general; Charles Foster and Benjamin Bradley (instructed by Barlow Robbins) for the second interested party, CNK Alliance Ltd.