News and comment: Divisional court decision in Nicklinson

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is 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 are for Parliament. . . .

84. 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 be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons 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 is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a 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, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).

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2 Responses to News and comment: Divisional court decision in Nicklinson

  1. […] record in this case was problematic. Initially, the claimant Tony Nicklinson had argued for a defence of necessity to murder which would permit voluntary active euthanasia in limited circumstanc…. By the time of the Supreme Court hearing, the arguments focussed only on potential incompatibility […]

  2. […] 2013, Martin, one of the claimants in the case known as Nicklinson was successful in his claim at the Court of Appeal. By a majority of 2-1, the Court of Appeal […]

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