Neutral Citation Numbers: Court of Appeal: [2013] EWCA Civ 961 High Court: [2012] EWHC 2381 (Admin)

UKSC/2013/0235 In the Supreme Court of the United Kingdom

ON APPEAL FROM HER MAJESTY’S COURT OF APPEAL

(CIVIL DIVISION)

Court of Appeal Ref: C1/2012/2712 B E T W E E N:

(1) THE QUEEN ON THE APPLICATION OF JANE NICKLINSON (IN HER OWN RIGHT AND AS ADMINSTRATIX OF THE ESTATE OF MR TONY

NICKLINSON, DECEASED)

(2) MR PAUL LAMB Appellants

-v-

MINISTRY OF JUSTICE Respondent

-and-

DIRECTOR OF PUBLIC PROSECUTIONS

1st Interested Party HER MAJESTY’S ATTORNEY-GENERAL

2nd Interested Party

APPELLANTS’ WRITTEN CASE

Introduction

1. This appeal marks what the Appellants hope is the final stage of their long, high profile

effort to obtain a remedy in respect of the extraordinary and cruel consequences1 for

1 “As the law now stands, there does not appear to be an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals.”: §326 of the judgment of the Court of Appeals of British Colombia in its recent judgment in Carter v Canada (2013) BCCA 435 [A7/40] involving a constitutional challenge to the equivalent provisions of assisted suicide in Canadian law, s 241(b) of the Canadian Criminal Code.

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them of the current law prohibiting assisted suicide in England and Wales under s 2(1)

Suicide Act 1961.

2. It takes place against the backdrop of the Report of the Falconer Commission on Assisted

Dying (the “Falconer Commission”), published in May 20122, which concluded that the

current legal framework for assisted suicide is “inadequate, incoherent and should not

continue” (below, §22), together with evidence of a significant majority of public support

for a relaxation in the laws on assisted suicide. For example, the 2010 British Social

Attitudes (BSA) survey recorded that 82% of the general public believed that a doctor

should probably or definitely be allowed to end the life of a patient with a painful

incurable disease at the patient's request3,4. This public support cannot be determinative

of the legal issues in this case5. The questions of whether and, if so, what changes

should be effected to the law in this area arouse very strong moral and ethical views on

both sides of the debate and are most suitably decided by democratically elected

legislators, who will have an opportunity to consider these issues if the private members

bill sponsored by Lord Falconer, the Assisted Dying Bill, is allowed to progress (below,

§37). However, it is not in dispute that under Article 8(1) of the European Convention

on Human Rights (the Convention), as given effect in England and Wales by the Human

Rights Act 1998, the Appellants have a qualified right to end their lives at a time and in

the manner of their choosing and that the current prohibition on assisted suicide

constitutes an ‘interference’ with that right which must be justified by the State under

Article 8(2). That is a legal issue, the resolution of which is a matter for this Court.

Outline of the Appellants’ case

3. Tony Nicklinson and Paul Lamb suffered catastrophic life-changing events that left them

both profoundly disabled. Over many years they resolved that they wished to end their

2 A copy of the report is in the Appendix to the AM case, Tab 10 at pages 192-572. 3 Falconer Report, p. 61 4 The Falconer Commission considered the research evidence available and commissioned its own research as to the views of the general public, older people and disabled people, discussed in their Report at pages 60-62 (General public); 167-169 (older people); 169-174 (people who are terminally ill); 174-182 (disabled people). 5 Although the Appellants submit that the level of public support is relevant to the Article 8(2) balancing exercise in determining the weight that is to be given to the views of Parliament expressed in the 1961 Act: see §§91ff, below.

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lives, but were unable to do so without specialist medical assistance that would have

involved the commission by any medical practitioner of the offence either of murder or

assisted suicide. This appeal, brought by Tony Nicklinson’s widow and Paul Lamb, now

concerns only one core issue, namely whether the prohibition on assisted suicide in s 2

Suicide Act 1961 is compatible with their Article 8 rights6 and, if not, what relief the

Court should give. They submit, in summary:

(1) S 2(1) Suicide Act 1961 constitutes a disproportionate and discriminatory

interference with their Article 8 rights as it prevents the most severely disabled

persons from obtaining medical assistance to end their own lives at a time of their

choosing and who cannot, or do not have the means to, travel abroad to avail

themselves of legal assisted suicide services. Given the constitutional limitations

on his power under s 2(4) of the 1961 Act the DPP7 has not provided, and cannot

provide, the necessary guarantee against prosecution that would enable the

Appellants to obtain the medical assistance they require.

(2) The Supreme Court should not follow the decision of the House of Lords in R

(Pretty) v DPP [2002] 1 AC 800 [v1/3] to the effect that s 2(1) constitutes a

proportionate interference with Article 8 rights, which presented an

insurmountable obstacle to their claims in the Divisional Court and Court of

Appeal.

(3) The only means by which practical effect can be given to the Appellants’ Article

8 rights is by disapplying s 2(1), which the Appellants contend may be done by

reading in a defence of necessity by application of s 3 Human Rights Act 1998;

alternatively, the Supreme Court should make a declaration of incompatibility

under s 4 of the 1998 Act.

6As explained in the Grounds of Appeal and the Statement of Facts and Issues, the Appellants no longer pursue the argument that the law of murder, which prohibits voluntary euthanasia, is also incompatible with their Convention rights; nor that s 2(1) Suicide Act 1961 must be read so as to include a defence of necessity in order to give effect to purely common law rights of autonomy and dignity. 7 Previously Keir Starmer QC, but from November 2013 Alison Saunders QC

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(4) Alternatively, the Supreme Court should remit the matter back to the High Court

for consideration of their claims with guidance on how the balancing exercise

under Article 8(2) is to be exercised.

Grounds of Appeal, Issues on the appeal, Facts and Legal Framework

4. The Grounds of Appeal and Issues are set out in the Appellants’ Notice, Sections 5 and 6

(App. I, p. 19) and the Statement of Facts and Issues (SFI). The background facts are

set out in the SFI and the judgment of the Court of Appeal at §§11-15 (App. 1, p. 30).

The legal framework is analysed in the judgment of the Court of Appeal at §§17-30

(statutory framework) and §§127-128 (the DPP’s Policy). Recent consideration of the

issues by Parliament is described at §§45-49 of the judgment of the Divisional Court

(App. I, p. 93-94), with the Appellants’ arguments as to the weight that these should be

given in the Article 8(2) balancing exercise at §§91ff, below.

Appellant’s approach in this Written Case

5. This Written Case is structured as follows:

(A) The scale of the issue: the prevalence of assisted suicide and the need for a

coherent legal framework (§§6ff).

(B) The operation of the DPP’s prosecutorial discretion in practice: de facto

decriminalization, adverse consequences and calls for change by the Falconer

Commission (§§9ff).

(C) How s 2(1) Suicide Act 1961 has been disapplied by the civil Courts (§§23ff).

(D) Findings of relevant expert bodies as to the absence of the ‘slippery slope’

(§§27ff).

(E) The interference with the Appellants’ Article 8(1) rights (§§47ff).

(F) Article 8(2): Relevant principles (§§48ff).

(G) Article 8(2): How s 2(1) of the Suicide Act 1961 constitutes a disproportionate

interference in the Appellants’ cases which cannot be avoided by the DPP’s

discretion in s 2(4) (§§80ff).

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(H) Article 8(2): The weight to be given to Parliament’s views in the balancing

exercise (§§91ff).

(I) Article 8(2): Why R (Pretty) v DPP [2002] 1 AC 800 should not be followed

(§§93ff).

(J) Article 8(2): Whether the Supreme Court should conduct the Article 8(2)

balancing exercise itself or remit it to the High Court for consideration of further

evidence (§101).

(K) Relief: Necessity, declaration of incompatibility and/or remittal back to the High

Court (§102ff).

A. The scale of the issue: the prevalence of assisted suicide and the need for a coherent

legal framework

6. In 2009 there were 4,390 suicides. There are no statistics available as to how many of

these were assisted suicides, but research conducted by Demos in 2011, which included

structured interviews with 15 serving or retired Coroners, suggests that approximately

10% of suicides – 439 - involve people suffering from a chronic or terminal illness, in a

number of which assisted suicide was suspected8.

7. More accurate statistics are available for those travelling to Switzerland for an assisted

suicide to take advantage of its more permissive legal regime. Evidence provided to the

Falconer Commission by Dignity in Dying in 2012 reveals that ‘approximately 160

British citizens have been helped to end their lives in Switzerland’9. Other evidence

considered by the Falconer Commission demonstrates there is a high demand for assisted

suicide from persons during the terminal phase of their lives and how, in the absence of a

legal mechanism for such assistance, other unregulated practices that end life proliferate,

some of which are illegal and others are on the borderline of legality. Professor Clive

Seale, Professor of medical sociology at the Centre for Health Sciences, Barts gave

8 ‘The Truth about Suicide’, DEMOs, (2011), p. 71; referred to in the Falconer Report, p. 59 9 Falconer Report, p. 100

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evidence to the Commission of the research10 he had carried out into the prevalence of

assisted dying practices among patients at the end of their lives, discussed in the Falconer

Report at pp. 51-56. Headline findings include:

(a) 10% of patients at the end of life request assistance in dying11;

(b) 39.2% of all deaths resulted from end-of-life decisions (passive euthanasia, double

effect and active euthanasia), although adding the figures for Continuous Deep

Sedation (16.5%) the figure was 55.7%;

(c) 21.7% were the result of withdrawing or withholding life-sustaining treatment12;

(d) 17.1% were the result of the administration of medication to alleviate symptoms with

estimated ‘double effect’, 2% of which were with the partial intention of ending life,

15.1% in the knowledge of a probable or certain hastening of the end of life13;

(e) 16.5% were the result of Continuous Deep Sedation (CDS) or palliative sedation14.

This was a much higher proportion of such deaths than, for example, in the

Netherlands and Belgium where CDS is seen as an alternative to euthanasia. The

Falconer Commission expressed concern that15:

‘... lack of regulation or even agreed terminology and definitions of palliative sedation means that little is known about medical practice in this area and it is not clear whether palliative sedation is always carried out with the patient’s consent, or whether palliative sedation can itself lead to the hastening of death – especially if the patient is denied hydration and nutrition during the sedation, which is prevalent in UK practice.”

10 Prof. Seale contacted 8857 doctors in the UK in relation to end-of-life decisions of patients who had died in their care in 2007-2008, inviting them – under conditions of strict anonymity - to provide information about those who had died in their care. 3733 of those contacted responded (a response rate of 42%). 2923 of those who responded had attended on a patient who had died in their care during the relevant period, and between them they had attended 72,071 deaths. The survey repeated an exercise that had been carried out in the UK in 2004 and since 1995 in six other European Countries. 11 Falconer Report, p. 119 12 Falconer Report, p. 53-54 13 Falconer Report, p. 51 14 Falconer Report, p. 51 15 Falconer Report, p. 287

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(f) 0.51% of all deaths involved active euthanasia; 0.21% were voluntary, with 0.3%

non-voluntary. If the figure 0.51% is extrapolated to the population of the United

Kingdom as a whole (in which there are approximately 500,000 deaths per year) it

equates to an estimated total of 3,000 cases of active euthanasia in the UK in 2007-8

(the figure given in the evidence of Clive Seale to the Falconer Commission16).

Although Prof. Seale considers this figure to be ‘low’ compared with other

jurisdictions17, the real figure in the UK may be higher: as Prof. Seale has noted

elsewhere, ‘legal prohibitions may have led to a reluctance to report actions that

involved the deliberate ending of life’, despite the steps taken to guarantee anonymity

(Palliat Med 2009; 23; 203). Moreover, if correct the numbers are comparable to

those that occur in the Netherlands, where the practice is lawful and therefore

transparent18. If these were officially recognised as murders then Home Office

homicide statistics would increase by 500%19.

(g) No cases of physician assisted suicide were reported. Prof. Seale considered this to

be the most striking statistic of all: where assistance was given it involved the more

serious criminal offence of murder (euthanasia), not the less serious offence of

assisted suicide20.

8. These statistics demonstrate a significant demand for assisted dying that is currently met

through unregulated, and unreported, forms of medical assistance some of which are on,

or cross, the borderline of what is legal.

16 Falconer Report, p. 55-56 17 Falconer Report, p. 56 18 In the Netherlands in 2005 there were 1765 reported cases of active euthanasia and 132 cases of physician assisted suicide: Assisted Death in Europe and America: Four Regimes and their lessons’, Gunter Lewy, 2011, OUP, Chapter 2, p. 31-32; see also End-of-Life Practices in the Netherlands under the Euthanasia Act, Agnes van der Heide et al., N Engl J Med 2007;356:1957-65 19 648 homicides were recorded in 2008/09, 136 fewer than the previous year: http://www.guardian.co.uk/uk/2009/jul/16/crime-figures-recession-impact 20 Falconer Report, p. 56

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B. The operation of the DPP’s prosecutorial discretion in practice: de facto

decriminalization, adverse consequences and calls for change

9. A small number of assisted suicides are reported to the police and then referred to the

DPP. The CPS website states21 that “Cases of assisted suicide are recorded centrally by

CPS Headquarters and are dealt with in the Special Crime and Counter Terrorism

Division in the CPS”. Their records show that from 1 April 2009 up to 1 October 2013

85 cases were referred to the CPS by the police that were recorded as assisted suicide or

euthanasia. Of these 64 were not proceeded with by the CPS and 11 were withdrawn by

the police. There are currently 9 ongoing cases. 1 case of assisted attempted suicide was

successfully prosecuted in October 201322.

10. These figures update those provided to the Falconer Commission, which noted that there

had been 40 cases referred to the CPS since 2009, none of which had resulted in a

prosecution23. This led the Commission to conclude (with emphasis added in italics):

... there is a public perception that assisted suicides that meet the criteria stipulated by the DPP policy are decriminalised.24

...

The guidelines — set out fully elsewhere in the report — amount to the DPP saying he will not prosecute in cases where the assistance is provided compassionately to a person who is capable of making a considered and autonomous decision. ... Or, to put it another way, they take a whole identifiable category of case out of the ambit of the criminal justice process.25

11. The Commission is here referring to the DPP’s “Policy for Prosecutors in respect of

Cases of Encouraging or Assisting Suicide”, published in February 2010 (“the

21 http://www.cps.gov.uk/publications/prosecution/assisted_suicide.html 22 Kevin Howe had encouraged the victim to set himself alight and provided the means to do so. The CPS statement records on its website: "Kevin Howe was fully aware of these intentions when he bought the victim both petrol and a lighter, and he knew precisely how they would be used. He deliberately encouraged the victim, who was clearly vulnerable, to set himself alight in a horrific and ultimately unsuccessful attempt to commit suicide.” 23 Falconer Report, p. 23, 50 24 Falconer Report, p. 23 25 Falconer Report, p. 285; set out in fuller detail in the Divisional Court judgment, at §130, App. I, p. 157

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Policy”)26, in particular those factors that weigh against a prosecution, namely that the

individual has capacity and has made a voluntary, clear, settled and informed decision to

take his own life (§45(1)) and the act was wholly motivated by compassion (§45(2)).

12. There is a legal difference between exempting a class of individuals from prosecution

and the formulation of a policy, as the DPP has submitted in these proceedings (see

judgment of the Divisional Court, §136 (App. 1, p. 117)). What is important, however,

is the reality of the situation. As Lord Toulson observed in response to that submission,

at §136 (App. I, p. 117):

Legally the submission is correct, but it may not accord entirely with public perception as the Falconer Commission's comments would tend to indicate.

13. Indeed, the reason why the then DPP, Keir Starmer QC, formulated his Policy in the first

place was because he was required by the House in R (Purdy) v DPP [2010] 1 A.C. 345

[v1/4] to do so, because Article 8 required members of the public to be able to foresee,

with a reasonable degree of confidence, whether an act of assistance in suicide would

result in prosecution. Having published his Policy, it is now sufficiently clear to the

public that the DPP will not give his consent to the prosecution of minor acts of assisted

suicide, on compassionate grounds, where the individual has made a voluntary, clear,

settled and informed wish to die27.

14. However, under the Policy medical assistance, particularly that which goes beyond what

can be described as ‘minor’ (such as that which would have been required by Tony

Nicklinson or would be required by Paul Lamb), is more likely to be prosecuted. The

Policy states that further factors against prosecution are that the act was wholly

motivated by compassion (§45(2)) and was ‘of only minor encouragement or assistance’

(§45(3)), so that more significant acts carried out by a doctor in the course of his

professional duties are, by implication, more likely to be prosecuted. Moreover, relevant

factors in favour of prosecution include that the suspect was paid for his encouragement

or assistance (§43(13)) and, at §43(14):

26 A copy of the Policy is in the Appendix to the AM case, at Tab 6, p. 105-113 27 This is further reinforced by the decisions taken by the DPP in individual cases that are published on the CPS website: see http://www.cps.gov.uk/publications/prosecution/assisted_suicide.html

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‘The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional ... and the victim was in his or her care’

15. Taken together, these factors lead to the conclusion that assistance of the kind sought by

Paul Lamb and, previously, by Tony Nicklinson would be likely to lead to the

prosecution of any medical professional providing them with such assistance. As Dr.

Lempert states in his second witness statement in support of Tony Nicklinson’s case

(App. 2, p. 348):

13. I confirm that whilst the law remains as I understand it to be at present, I would regard myself, like any other doctor, as being prevented both by law and my professional obligations from doing anything which could be seen as being capable of encouraging or assisting Tony either to take his own life or to attempt to take his own life, or encouraging or assisting anyone else to take steps to bring about the ending of Tony's life.

16. As the Falconer Commission again observed28:

... the factors for and against prosecution make a special case of health and social care professionals, making it clear they are more likely to be prosecuted for providing assistance with suicide than other members of the public.

17. The then DPP gave evidence to the Falconer Commission in which he explained that the

rationale for making the involvement of medical professionals a factor in favour of

prosecution was not for public interest reasons or because of any need to provide greater

protection to vulnerable individuals, but rather because he would otherwise cross the

boundary of what was constitutionally acceptable29:

We thought that if the law remains unamended and in that form, it was important to distinguish between as it were one off acts of support or compassion and those that were engaged in the delivery of professional services or a business that would routinely, or more likely to routinely bring them into conflict with the law, because of the broad prohibition on assisted suicide... It’s one thing to say, ‘this is ... a one-off compassionate act’ compared with ‘this is the provision of a service or a business’, which inevitably involves a breach of the law.

28 Falconer Report, p. 286 29 Falconer Report, p. 94

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If such a factor had not been included, Mr Starmer thought that ‘Parliament might say we are really undermining the prohibition on assisted suicide’.

18. Mr. Starmer also explained to the Commission how it was not possible for him to give a

guarantee, in advance, that certain conduct by a medical professional would or would not

be prosecuted under the Policy30:

We have been asked by a number of individuals to indicate whether conduct A, B or C would be a criminal offence. We are asked for that sort of advice a lot not just in this field but generally. And often it’s in complete good faith... But the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not… I do recognise that for professionals and others it can leave them feeling a little bit exposed when all they really want is some guidance… [but] we can’t give a cast iron guarantee that certain conduct will or won’t attract prosecution.

19. The Falconer Commission explained how this process had led to “considerable

uncertainty about what conduct will attract criminal prosecution” (Report, p. 23, 286).

20. The DPP’s approach of (in effect) exempting minor acts of assistance of suicide by non

medical professionals on compassionate grounds to persons whose decision is freely

made, but refusing to exempt more substantial acts of assistance by medical

professionals acting in their professional capacity has a number of adverse consequences,

as the Falconer Commission concluded. First, it encourages amateur assisted suicides,

with the obvious risk of botched attempts and the considerable burden on friends and

family members who will be treated as criminal suspects31. Second, there is no expert

assessment in advance of whether the deceased has given a true consent (i.e. that he has

capacity and has not been subject to undue pressure from others) nor whether any

alternatives to suicide exist or have been explored32. Third, those who wish to have

medical assistance are forced to travel to Switzerland to engage the services of Dignitas,

which is not available to everyone because of the cost and logistics, and those who do

travel often do so earlier than they would otherwise wish to die33. Accordingly, as the

Falconer Commission found, it offers less protection for vulnerable persons than would

30 Falconer Report, p. 96 31 Falconer report, p. 98, 286 32 Falconer Report, p. 227, 299 33 Falconer Report, p. 100-101, 286

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be provided by a legal regime that permitted assisted suicide subject to stringent

safeguards, such as that available in the Netherlands, Belgium or Oregon (emphasis

added):

“The evidence we have received in the Netherlands, Belgium and Oregon suggests that such a framework could be safer than the status quo, while also providing terminally ill people with more choice and control at the end of life.” (Report, p. 299)

21. There is a fourth adverse consequence, which is of particular relevance on these appeals.

Tony Nicklinson and Paul Lamb were and are unable to obtain assistance to end their

lives because medical professionals will not offer their services in circumstances where

their involvement is explicitly identified as an aggravating factor, there is considerable

uncertainty as to what actions will be covered by the Policy and the DPP is precluded

from giving an advance undertaking that they will not be prosecuted.

22. The Appellants would emphasise that they are not challenging the DPP’s Policy but the

underlying law which the DPP has sought to implement. The adverse consequences

highlighted above expose the limitations of a law which creates a blanket prohibition on

assisted suicide but confers a discretion on a public official not to prosecute in the public

interest, in circumstances where there is considerable public support for a change in the

law but where constitutional principles restrict the DPP from explicitly disapplying the

law. The resulting anomalies in the law are not to be laid at the door of the DPP, but of

the law itself and the Appellants highlight and endorse the Falconer Commission’s

headline conclusion (which appears on the cover page of its report, as well as at p. 23

and 299) that:

“The current legal status of assisted suicide is inadequate, incoherent and should not continue”

C. S 2(1) disapplied by the civil Courts where decision is freely made

23. The civil courts have also effectively disapplied the criminal prohibition in s 2(1) in

circumstances where an individual’s decision to take their life has been freely made. In

Re. Z (Local Authority – Duty) [2005] 1 WLR 959 [v1/6] an application was made to the

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High Court, Family Division, by a local authority under s 222 Local Government Act34

after it had become aware of the plans of a resident, Mrs. Z, to travel to Zurich for the

purposes of an assisted suicide with the assistance of her husband, Mr. Z. An interim

injunction was granted restraining Mr. Z from removing Mrs. Z from England and

Wales. The matter came back before Hedley J by which time a consultant psychiatrist

had assessed Mrs. Z as having capacity to make the decision to end her life. Hedley J

discharged the injunction. He recognised that the Court had jurisdiction to grant an

injunction to restrain the commission of a criminal offence which could be invoked by

the Local Authority under s 222 (§§16-17); that Mr. Z by providing assistance to his wife

was committing the offence of assisting a suicide contrary to s 2(1) (§14), and that in

some circumstances the State owed a duty under Article 2 to take active measures to

protect life. However, he concluded:

... in the context of a person of full capacity, whilst the right to life is engaged, it does not assume primacy, at the hands of another especially, over rights of autonomy and self-determination.

24. It was a matter for the DPP under s 2(4) to decide whether to prosecute. Where the

criminal justice agencies were aware of the facts, an injunction would not be granted

where (§20):

... the effect of the injunction is to deny a right to a seriously disabled but competent person that cannot be exercised herself by reason only of her physical disability.

25. While the judgment was not to be taken as demonstrating the court’s views about the

rights or wrongs of suicide, assisted or otherwise (§21):

This case simply illustrates that a competent person is entitled to take their own decision on these matters and that that person alone bears responsibility for any decision so taken. That is the essence of ... the innate right of self-autonomy. It illustrates too that the civil court ... will be slow to restrain behaviour consistent with the rights of others simply because it is unlawful ...

34 (1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area—(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name …

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26. We will return to this below, at §61, in the context of the limit on States’ positive

obligations to prevent suicide under Article 2. However we would observe that nothing

in Hedley J’s judgment lends support for the argument that a different approach should

be adopted because the act of assisted suicide cannot be described as ‘minor’ or because

medical, rather than amateur, assistance is required.

D. Findings of relevant expert bodies as to the absence of the ‘slippery slope’

27. The issues raised by this case are common in all countries, in particular those developed

countries where advances in medicine have pushed the possibilities for extending life to

an extent that would have been unthinkable even a generation or two ago, and certainly

at the time when existing legal prohibitions on assistance in dying were first formulated.

The practice of assisted suicide (and, in some cases, euthanasia) has been legalised in a

growing number of jurisdictions and the evidence from those jurisdictions – in particular

of Oregon and the Netherlands, where the practice has been legal for many years – has

been recently assessed by a number of expert bodies. The Court is entitled to give

weight to their conclusions in the balancing exercise required by Article 8(2).

Council of Europe jurisdictions where assisted suicide is lawful35

28. Physician assisted suicide and euthanasia are now lawful in three Council of Europe

jurisdictions, namely the Netherlands (the Termination of Life on Request and Assisted

Suicide (Review Procedures) Act 2001, although the law was first changed as a result of

the Dutch Supreme Court decision of Schoonheim in 1984); Belgium (Law on

Euthanasia Bill legalizing euthanasia which came into effect on September 22, 2002) and

Luxembourg (Law on Euthanasia and Assisted Suicide came into force in Luxembourg

in 2009). Assisted suicide, but not euthanasia, is lawful in Switzerland where since 1942

Article 14 of the Swiss criminal code has made it a criminal offence to kill a person upon

request, but by Article 15 to assist a person to commit suicide is only a criminal offence

if done ‘for selfish motives’. By contrast with other jurisdictions where the practice is

legal, the assisted suicide can be conducted by non-physicians and is open to foreign

nationals, although a medical report must be obtained before a prescription can be

obtained for the necessary medication (a requirement that was considered by the

35 A discussion of the regimes in those countries where assisted suicide is lawful can be found in the Falconer Report, pages 138-158

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Strasbourg Court in Haas v Switzerland (2011) 53 E.H.R.R. 33, §51 [v1/9] and Gross v

Switzerland, App. No. 67810/10, 14 May 2013 [v1/8]). For this reason it is the

destination of choice for foreign nationals, including British citizens, who wish to avail

themselves of the service of organisations such as Dignitas that provide a private assisted

suicide service.

29. In the other 36 Council of Europe member States any form of active assistance in suicide

is forbidden by the criminal law (see Koch v Germany, (2013) 56 E.H.R.R. 6, §26

[v1/10]; Haas v Switzerland (2011) 53 E.H.R.R. 33, §51 [v1/9], §§30-31, 55).

Accordingly, there is no consensus among Council of Europe members on this issue, for

which reason States are accorded a wide margin of appreciation under Article 8(2), see

below §50.

Non-Council of Europe jurisdictions where assisted suicide is lawful

30. In 1994 Oregon voters passed the Death with Dignity Act (DWDA) legalising physician

assisted suicide. The key requirements of the legislation are that the patient must have an

incurable disease that will produce death within six months and is capable of making the

decision and does so voluntarily; the patient’s physician must refer the patient to a

second physician for confirmation of the diagnosis, capacity and voluntariness of the

request; and there is a statutory 15 day ‘cooling-off’ period. In 1998 Washington voters

followed suit with an almost identical Act by a majority of 58%. In May 2013, the

Vermont Legislature passed the Patient Choice and Control at End of Life Act which is

based on, but is less restrictive than, the Oregon model. A similar legislative attempt in

Massachussetts was narrowly defeated in 2012. In Montana the law prohibiting assisted

suicide was relaxed as a consequence of the decision of the Supreme Court of Montana

in Baxter v Montana, decided on 31 December 2009.

Falconer Commission on Assisted Dying (May 2012)

31. In 2010 the Commission on Assisted Dying was established with funding from two

prominent supporters of assisted dying, Terry Pratchett and Bernard Lewis. It is an

independent body with no government involvement chaired by the former Lord

Chancellor, Lord Falconer with the other eleven Commissioners drawn from a number of

walks of public life including medicine, religion, politics, health and social care and law.

Research support was provided by Demos. Its aims were to: investigate the

circumstances under which it should be possible for people to be assisted to die;

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recommend what system, if any, should exist to allow people to be assisted to die;

identify who should be entitled to be assisted to die; determine what safeguards should

be put in place to ensure that vulnerable people are neither abused nor pressured to

choose an assisted death; and to recommend what changes in the law, if any, should be

introduced. The Falconer Commission conducted extensive evidence-gathering sessions

(Report, p. 327) with both oral and written submissions and conducted research visits to

Belgium, the Netherlands, Oregon and Switzerland.

32. The Falconer Commission’s report was published in May 2012. It is a lengthy document

with many findings on the evidence that are relevant to the issues raised by this case.

They looked, in particular, at the evidence from other permissive regimes, primarily

Oregon and the Netherlands, to assess whether legalisation had led to an increased risk to

vulnerable groups of individuals, particularly old people and disabled people. One of the

key pieces of research considered was a study from 2007 conducted by Margaret Battin

et al at the University of Utah which used data from Oregon and the Netherlands to

assess whether there was any evidence that the legalisation of assisted dying had put

vulnerable people at risk of undue influence or abuse. The Commission recorded the

findings of this report as follows (emphasis added):36

The groups that the study focused on were older people, women, the uninsured (inapplicable in the Netherlands, where everyone is insured), people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses including depression, and people from racial or ethnic minorities. Having looked at all of the available data — which the authors noted were of varying quality — the report found no evidence of heightened risk among these groups. The study’s analysis using more robust data found that older people, women and people with no health insurance, were at no increased risk from assisted dying.

33. Having considered all the evidence the Falconer Commission made a number of

findings. Key among them are these:

There was “no evidence from the current approach to end of life decision-making to suggest older people would be at increased risk if the law on assisted dying was changed” (p. 166).

36 Falconer Report, p. 185

16

There was no evidence of vulnerable groups being at increased risk of death in Oregon and Netherlands (p. 185, 290, 300), in particular there was no risk of coercion (p. 241, 242-243, 290-291, 300). Evidence obtained by Commissioners who visited the Netherlands, Belgium, Switzerland and Oregon was that it is usually better educated, more articulate people who are able to access an assisted death (186).

34. The Falconer Commission’s primary recommendation was that the law should be

changed to permit assisted suicide for persons suffering from a terminal illness (i.e. with

less than one year to live) (page 299).

35. Unlike the Canadian Royal Society and the Quebec Select Committee (see below), the

Commission did not recommend that any form of euthanasia should be permitted: in

their opinion, the final step should be taken by the individual seeking to end their life:

“This is an important safeguard to ensure that the person who wishes to have an assisted death remains in control of the process throughout, and can change their mind at any point” (31, 302).

36. However, the Commission did recommend that as a ‘reasonable adjustment’ a

mechanism should be permitted that would allow very disabled people (such as Tony

Nicklinson and Paul Lamb) to take advantage of assisted suicide (p. 256, 307, 318, 343).

The Oregon experience, which required the individual to take the medication once

prescribed in their own home without additional support was considered to be ‘very

restrictive’ (318)

37. A private members bill based on the recommendations of the Falconer Commission, the

Assisted Dying Bill, has been introduced in the House of Lords and received its first

reading on 15 May 2013 [v8/41]. The definition of a ‘terminal illness’ is now restricted

to those with less than six months left to live, rather than a year (Clause 2). Thus even if

the Bill were to be successful it would not entitle those who are not terminally ill, like

Tony Nicklinson and Paul Lamb, to medical assistance to end their lives. The

Commission recognized the dilemma that this would create for such individuals and their

families and recommended that the DPP’s Policy continue to apply to such cases (p.

327).

38. While the Appellants endorse and rely upon much of the Falconer Commission’s

conclusions, particularly where those coincide with findings by other expert bodies from

17

different jurisdictions, they (unsurprisingly) do not rely upon the proposal that only those

with terminal illness should be permitted to avail themselves of an assisted suicide.

However, they submit, the Falconer Commission’s acknowledgment that the DPP’s

Policy should continue to apply in such cases begs the very question raised by this

appeal, namely whether the DPP’s discretion under s 2(4) provides an adequate

safeguard to protect against breaches of Article 8.

Royal Society of Canada Expert Panel on End-of-Life Decision Making (2011) [v9/56 ]

39. In 2011 the Royal Society of Canada, in order to ‘catalyze and contribute to a process of

public reflection on these critically important public policy issues’ appointed an Expert

Panel comprising representatives from the areas of bioethics, clinical medicine, health

law and policy, and philosophy (p. 5). Although it did not conduct evidence-gathering

sessions Panel Members brought their own expertise and experience to the project and

additional research was conducted as required.

40. The Panel’s key findings on the question of whether legalisation led to heightened risks

to vulnerable people were as follows:

In sum, there is no evidence from the Netherlands supporting the concern that society’s vulnerable would be at increased risk of abuse if a more permissive regime were implemented in Canada (p. 89).

Despite the fears of opponents, it is also clear that the much-feared slippery slope has not emerged following decriminalization, at least not in those jurisdictions for which evidence is available. ... What has emerged is evidence that the law is capable of managing the decriminalization of assisted dying and that state policies on this issue can reassure citizens of their safety and well-being. (p. 90)

41. The Panel recommended that the law be changed so that both physician assisted suicide

and euthanasia would be available in Canada (p. 100).

Quebec ‘Dying with Dignity’ Select Committee (March 2012) [v9/57]

42. In 2009 the Quebec National Assembly appointed a Select Committee to consider the

issues around the legalisation of physician assisted dying, in circumstances described in

the introduction to its report, at p. 11. The Committee conducted hearings in which

experts gave evidence; visited France, Belgium and the Netherlands to gather evidence;

conducted a large public consultation exercise before finalising its report: and then

18

deliberated for over a year before finalising its unanimous report in March 2012: see p.

12-14. The Committee’s key conclusions, for our purposes, were as follows (emphasis

added):

... in the countries visited, we did not observe any abuse associated with the feared slippery slope. In fact, physicians and institutions that do not practice euthanasia, and even those opposed to it, told us the slippery slope has not materialized (p. 74)

43. The Select Committee unanimously recommended that physician assisted euthanasia –

‘Medical aid in dying’ – should be legalised (p. 76).

Carter v Canada 2012 BCSC 886, 15 June 2012, British Colombia Supreme Court

44. This landmark judgment [v6/39] was handed down by Smith J on 15 June 2012 finding

the Canadian equivalent law on physician-assisted suicide, s 241(b) of the Canadian

Criminal Code, to be contrary to s 7 and 15 of the Canadian Charter of Rights and

Freedoms. The case is unique in that, while there have been a number of constitutional

or human rights challenges to assisted suicide laws in different jurisdictions in the past

(notably the USA37 and Canada38, as well as in the UK), this was the first time in which

a Court had sought to resolve the conflicting evidential issues at the heart of the debate,

in particular (by reference to the experiences in Oregon and the Netherlands) as to the

likelihood that a relaxation of laws would be the start of a ‘slippery slope’ leading to

unacceptable risks to vulnerable people – the consideration that has always prevailed in

previous Constitutional and human rights challenges, including R (Pretty) v DPP [2002]

1 AC 800 [v1/3].

45. Attention is drawn to those passages of the judgment in which Smith J found that there

was no evidence of heightened risk to vulnerable people in countries with a permissive,

but regulated, legal regime, which included a rejection of criticisms of the Battin report

(see §32 above) made by experts called on behalf of the Canadian AG: see §§9, 656,

660, 665, 667, 684, 685, 1241, 847, 853, 1241-2 (emphasis added) [v6/39]:

37 Cruzan v Director, Mo. Dept of Health 497 US 251 (1990), Washington v Glucksberg 521 US 702 (1997) and Vacco v Quill 521 US 192 (1997) 38 Rodriguez v. British Colombia [1993] 3 SCR 519

19

[1241] Further, the evidence from other jurisdictions shows that the risks inherent in legally permitted assisted death have not materialized in the manner that may have been predicted. ...

[1242] The evidence does not support the conclusion that, since the legalization of physician-assisted death, there has been a disproportionate impact, in either Oregon or the Netherlands, on socially vulnerable groups such as the elderly or persons with disabilities. ... .

46. The judge’s declarations have since been overturned by a majority of the BC Court of

Appeal, 2013 BCCA 435 [v7/40], but the basis of the majority judgment was limited to

finding that Smith J had wrongly concluded she was not bound by the Supreme Court

decision in Rodriguez v. British Colombia [1993] 3 SCR 519, and the issue is now to be

considered by that Court. Crucially, the majority did not criticise Smith J’s approach or

overturn her findings of fact or law and they recommended (§§326-335) that if the

Supreme Court were to review s 241(b), then it should consider making a ‘constitutional

exemption’ to that provision allowing a competent individual to obtain a physician-

assisted suicide, although (contrary to Smith J’s order at §§1414-1415 [v6/39]) this could

only be authorised in individual cases by a Court rather than by two medical

practitioners: precisely the approach contended for by the Appellants (see §109, below).

Accordingly Smith J’s findings on the evidence remain relevant, particularly in so far as

they accord with the findings of the other relevant bodies referred to, notably the

Falconer Commission.

E. The impact of the current framework on the Appellants’ Article 8 rights.

47. Tony Nicklinson and Paul Lamb are prevented by operation of s 2(1) of the Suicide Act

1961 from obtaining significant medical assistance to end their lives of the kind

described in Dr. Nitschke’s statement at (App. II, p. 275), SFI §13. This amounts to an

interference with their Article 8(1) rights of autonomy and dignity, as the Court of

Appeal recognised at §33 of its judgment (and see also §§51-52) (App. I, p. 33, 37). The

conclusion follows from Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11], §§61,

62, 65, 67; R (Purdy) v DPP [2010] 1 A.C. 345 [v1/4], see §§1 (Lord Phillips), 31, 32,

38, 39 (Lord Hope); 61-62 (Baroness Hale); 70*, 71, 74*, 83* (Lord Brown), §95, 100,

106 (Lord Neuberger), departing from R (Pretty) v DPP [2002] 1 AC 800 [v1/3], Lord

Steyn §61; Lord Bingham §§23-27; Haas v Switzerland (2011) 53 E.H.R.R. 33, §51

[v1/9]; Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10], §51-54; Gross v Switzerland,

20

App. No. 67810/10, 14 May 2013 [v1/8], §§58-60). It also not in dispute that Jane

Nicklinson’s own Article 8(1) rights are engaged by virtue of her relationship with her

husband and her close involvement in his wish to die: Koch v Germany (2013) 56

E.H.R.R. 6, §50.

F. Article 8(2): Relevant principles

48. The question is whether that interference is ‘necessary in a democratic society’ and

therefore justified under Article 8(2). The relevant test was described by Lord Wilson in

R (Quila) v Home Secretary [2012] 1 AC 621 [v1/5], §45:

(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?

49. The Appellants accept (requirements (a) and (b)) that the prohibition on assisted suicide

in s 2(1) of the Suicide Act 1961 is aimed at a legitimate objective and is rationally

connected to it, namely safeguarding life and thereby protecting the rights of others, in

particular the weak and vulnerable and especially ‘those who are not in a position to take

informed decisions against acts intended to end life or to assist in ending life’: see Pretty

v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11] §§69 and 74. Their case is that the

Respondent cannot discharge the heavy burden upon it of establishing the requirements

in (c) and (d), developed at §§80ff, below. We first set out the relevant principles of law

that may be derived from the developing case-law in this area.

(a) The margin of appreciation

50. In the context of legislation on assisted suicide, given the lack of consensus among

member States of the Council of Europe, contracting States have a wide margin of

appreciation in striking the balance between the individual rights of autonomy and

dignity protected by Article 8(1) and the need to protect the lives of others under Art

8(2): Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11], §§70-74, 88; Haas v

Switzerland (2011) 53 E.H.R.R. 33, §51 [v1/9], §55, 61; Koch v Germany (2013) 56

E.H.R.R. 6 [v1/10], §70-71.

21

51. However the margin of appreciation is not without limit and the decision remains subject

to review by the Strasbourg Court (see Hirst v United Kingdom (2006) 42 E.H.R.R. 41

[v5/34], §82), on the principles we develop below.

(b) A blanket ban, without any flexibility, is disproportionate

52. The Strasbourg Court has already found that an absolute ban on assisted suicide, without

any flexibility, is disproportionate: Pretty v United Kingdom (2002) 35 E.H.R.R. 1

[v1/11], §76, as interpreted by a majority of the House in R (Purdy) v DPP [2010] 1 A.C.

345 [v1/4]. This proposition is in dispute: the Court of Appeal held that this

interpretation of §76 was wrong. The Appellants respectfully submit they were wrong so

to hold, for which reason R (Pretty) v DPP [2002] 1 AC 800 [v1/3] should not be

followed, see below §93.

53. In R (Pretty) v DPP [2002] 1 AC 800 the House held that, in so far as it constituted a

blanket and indiscriminate ban on assisted suicide, applying to all persons and without

drawing any distinction between willing victims and others, s 2(1) was not

disproportionate: see R (Pretty) v DPP [2002] 1 AC 800 [v1/3], §§29, 36, 74, 98, 107. In

Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11], particularly §76, the Strasbourg

Court held that a blanket prohibition on assisted suicide was disproportionate, but that

the DPP’s discretion to prosecute in s 2(4) was capable of being exercised in a manner

that prevented s 2(1) from being applied disproportionately, so that the interference with

Article 8(1) rights therefore fell within the State’s margin of appreciation. This was how

Pretty v United Kingdom was understood and applied by the House of Lords in R

(Purdy) v DPP [2010] 1 A.C. 345 [v1/4]: see per Lady Hale (§§63, 64, 65, 66) and Lord

Brown (§70, 74, 75, 82, 83), with whom Lord Neuberger agreed, §106.

54. The competing arguments, and the Court’s conclusion, are set out at §§70-106 of the

Court of Appeal’s judgment (App. I, p. 42-53) and are not repeated.

55. The following additional points may be made.

56. First, at §103 of its judgment the Court of Appeal agreed with the Appellant’s

submission that Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10] provided implicit support

for the proposition that a blanket ban on assisted suicide would breach Article 8, but then

distinguished the case on two bases.

22

(a) Because Koch “was not about the ability of a party to take her own life but the

different question whether she could do so in the manner she desired”. However, the

premise is wrong; Koch was, indeed, about the applicant’s wife’s ability to take her

own life with medically prescribed drugs in the jurisdiction, which German law

forbade (Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10], §23). That is the materially

the same issue raised in the Appellants’ case who could, theoretically, travel to

Switzerland. Second, the conclusion does not follow from the premise in any event.

If Article 8 can be violated because the law restricts the choice of how to die, a

fortiori it can be violated if it prevents a person from taking their life at all.

(b) “Moreover”, the Court concluded, “there is nothing in the judgment which suggests

how the German court was required to resolve that question”. With respect, that is

not correct: the Strasbourg Court ruled that the balancing exercise must be taken by

the German courts ‘on the merits’ (§54). If the judgment is to make any sense this

exercise must necessarily involve a more intensive scrutiny of the proportionality of

the relevant German laws than is carried out by the Strasbourg court applying the

margin of appreciation (see §§66ff, below).

57. Second, it is a necessary implication of the unanimous ratio decidendi of the judgment in

R (Purdy) v DPP [2010] 1 A.C. 345 [v1/4] – not just of what the Court of Appeal (and

the Divisional Court) considered to be the narrower reasoning of Lady Hale and Lord

Brown (see Court of Appeal judgment, §99) – that the prosecutorial discretion in s 2(4) is

necessary in order to save an otherwise inflexible and therefore disproportionate blanket

ban in s 2(1). If the blanket ban accorded with the requirements of Article 8(2), without

the need for any flexibility, then the ‘law’ (s 2(1)) would require no further elaboration in

order to accord with the requirement that the ban be ‘in accordance with the law’. It is

only when the law provides for exceptions to an otherwise blanket prohibition that the

extent of those exceptions calls for further clarification in order to comply with this

aspect of Article 8(2), as we develop at §§64-65 below.

58. Third, the Strasbourg Court has consistently found that an interference with a

Convention right caused by a blanket prohibition, that permitted of no exceptions, will be

disproportionate, even in an area where an otherwise wide margin of appreciation will be

afforded to the contracting State: see, for example, Hirst v United Kingdom (2006) 42

E.H.R.R. 41 [GC] [v5/34], §82 (prisoners voting). Such a restriction permits of no

23

balancing exercise to be carried out between the competing public interests and private

rights at any stage and would drain the protected Article 8(1) right of all its content.

Where, exceptionally, a blanket ban is to be considered proportionate the State must

demonstrate that the necessity for the blanket nature of the measure has been fully

debated by the legislature (Hirst v United Kingdom (2006) 42 E.H.R.R. 41, §79).

59. Fourth, for the reasons we develop at §§9ff and 23ff, above, in practice s 2(1) is operated

through the medium of the DPP’s policy under s 2(4) as creating exceptions in a broad

class of cases. In assessing the proportionality of the restriction it is the practical

application of the law, not its theoretical status, which is relevant (see Wilson v First

County Trust [2004] 1 AC 816, §61 [v4/32]). The ‘blanket ban’ in s 2(1) is no longer the

starting point of the exercise under Article 8(2), although it clearly was the correct point

to begin with when R (Pretty) v DPP [2002] 1 AC 800 [v1/3] was decided 2001, which is

a further reason why that decision should not be followed (see §97, below).

(c) Practice of non-prosecution undermines the case for the necessity of a measure

60. Where a State has ceased to prosecute an offence in certain circumstances then it cannot

be maintained that there is a 'pressing social need' to continue that criminal offence in

force in those circumstances (Dudgeon v United Kingdom, (1982) 4 E.H.R.R. 149 [v1/7],

§60; Norris v Ireland (1991) 13 E.H.R.R. 186 [v5/36], 46).

(d) Balancing exercise under Article 8(2) is determined by the balance struck under A 2

61. In determining whether a prohibition on assisted suicide is necessary to achieve the

legitimate aim of protecting the lives of others under Article 8(2), the balancing exercise

is informed by that conducted under Article 2 in determining whether the State owes a

positive obligation to adopt measures to prevent suicide, which involves balancing the

State’s duties under Article 2 with individuals’ countervailing rights under Article 8

(Keenan v United Kingdom (2001) 33 EHRR 913, §91, cited in Rabone v Pennine Care

NHS Trust [2012] 2 AC 72 [v4/29], §104).

62. It has now been established that the State’s positive obligation under Article 2 to have in

place laws preventing suicide is owed only to those whose decision is not ‘taken freely

and with full understanding of what is involved’ (Haas v Switzerland (2011) 53 E.H.R.R.

33, §51 [v1/9], §54). It follows that States will not breach Article 8 if they prohibit

assisted suicide to protect those who have not made, or are not capable of making, a free

24

choice (which would include vulnerable persons such as detained prisoners and detained

and informal psychiatric patients, see Rabone v Pennine Care NHS Trust [2012] 2 AC 72

[v4/29], §100), because if they do not do so they will breach Article 2. Conversely,

member States are not only free but, the Appellants submit, bound to legislate to permit

persons who are capable of making, and have made, a free choice to end their lives. In

those circumstances Article 2 does not impose a positive obligation to protect life, so the

‘necessity’ of the interference under Article 8(2) for the purpose of protecting life in

those circumstances is not established. This is consistent with the approach adopted by

Hedley J in Re. Z (Local Authority - Duty) [2005] 1 WLR 959 [v1/6], above §23.

63. The decision in Haas v Switzerland (2011) 53 E.H.R.R. 33, §51 [v1/9] is of particular

significance because before that decision it was not clear in what circumstances the State

was obliged to have in place protective measures to prevent suicide and assisted suicide

in order to fulfil its positive obligation to protect the right to life under Article 2.

Indeed, part of the reasoning of the House of Lords in R (Pretty) v DPP [2002] 1 AC 800

[v1/3] was to the effect that Article 2 might impose a positive obligation on the state to

protect a person in Ms. Pretty’s position; see per Lord Bingham at §8. This issue was

left open by the ECtHR in Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11], §41.

This led the Joint Parliamentary Committee on Human Rights (JCHR) to express a

‘serious doubt whether legislation permitting assisted suicide or euthanasia would be

compatible with Article 2’ when scrutinising the Patient (Assisted Dying) Bill in 2003:

see the JCHR Scrutiny Report on Patient (Assisted Dying) Bill, HL Paper 74, HC 547

[v8/43], §50-51. That ‘serious doubt’ has now been dispelled.

(e) Where rights are granted they must be practical and effective, not theoretical and

illusory

64. The right protected by Article 8(1) must be ‘practical and effective’, not ‘theoretical and

illusory’ and any restrictions upon it must not be ‘arbitrary’. Accordingly, where a State

restricts assisted suicide, but allows exceptions in certain circumstances, clear legal

guidelines are necessary to ensure clarity as to the extent of those circumstances (Gross v

Switzerland, App. No. 67810/10, 14 May 2013 [v1/8], §§63-67) and there may be certain

positive obligations on the State to give practical effect to that right (Haas v Switzerland

(2011) 53 E.H.R.R. 33, §51 [v1/9]), including the adoption of measures to give an

effective and accessible means of vindicating the right in circumstances where assisted

25

suicide is permitted (see, by analogy, A, B & C v Ireland (2011) 53 EHRR 13 [v5/33],

§245).

65. The Appellant observes that the Court of Appeal identified the decision in Gross v

Switzerland, App. No. 67810/10, 14 May 2013 [v1/8] as being an application of the

requirement that any interference with Article 8(1) must be ‘in accordance with the law’,

even though it did not explicitly say so (judgment, §148 (App. I, p. 58)). The Appellant

would observe, first, that the requirement of legality, and the requirement that the law is

not ‘arbitrary’, are closely linked (see, e.g. S v United Kingdom, (2009) 48 E.H.R.R. 50

[v5/37], §99). A, B & C v Ireland (2011) 53 EHRR 13 [v5/33], §245 demonstrates that

these are also closely linked with the ‘positive obligation’ aspect of Article 8 to have in

place appropriate legal measures to afford effective protection. For present purposes the

distinction is not important: the substance of the point is that where domestic law

interferes with a right, but provides exceptions, it is incumbent on the State to clarify the

circumstances in which exceptions apply and to take measures that ensure the right is

practical and effective, not theoretical or illusory.

(f) Where a restriction is discriminatory in its effects it is ‘arbitrary’

66. A prohibition on assisted suicide which is discriminatory is arbitrary and

disproportionate for the purposes of Article 8(2) and is also unlawful for the purposes of

Article 14. The Appellants do not propose to develop the Article 14 argument

independently as it is subsumed within the Article 8(2) exercise. The ECtHR has on

many occasions explained how it is unnecessary to consider Article 14 in circumstances

where any inequality in treatment has been taken into account as part of the analysis

under Article 8(2): see, e.g., Jehovah's Witnesses of Moscow v Russia (2011) 53

E.H.R.R. 4, §§187-188 [v5/35]; Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149

[v1/7] at §67). For the avoidance of doubt, Article 14 is ‘invoked’ by the Appellants (see

amended Part 8 Details of Claim and Detailed Grounds of Judicial Review (App. II, p.

125)).

(g) Role of the domestic Courts in conducting the Article 8(2) balancing exercise

67. The considerations outlined above are applied by the Strasbourg Court notwithstanding

the wide margin of appreciation afforded to States in this area of law, and should be

applied by the domestic courts in the same way. However, even if the Strasbourg Court,

having applied those principles, would still find that s 2(1) was not disproportionate

26

because it fell within the State’s margin of appreciation, the domestic Courts are still

obliged to carry out their own balancing exercise, on the merits, as an aspect of the

procedural rights created by Article 8(2): Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10],

§§65-72.

68. In carrying out that exercise, the ‘margin of appreciation’ then has no part to play,

although the domestic Courts should give appropriate weight to the views of the

decision-maker, including Parliament. However the domestic Court may find the

balance struck to be disproportionate even if the Strasbourg Court would find that it fell

within the United Kingdom’s margin of appreciation: Re. G (Adoption: Unmarried

Couple) [2009] 1 AC 173 [v1/2]; §29-32, 36-38 (Lord Hoffman); 50, 56 (Lord Hope);

84, 113, 115, 117, 118, 119, 120, 122 (Baroness Hale); 126-130 (Lord Mance); 79, 82

(Lord Walker, dissenting on this point, §79).

69. The Court of Appeal accepted the broad thrust of this submission, but held that it did not

permit a domestic Court to find that the blanket prohibition on assisted suicide was

disproportionate, for two reasons (judgment, §§107-114) (App. I, p. 53). First, the

House of Lords in R (Pretty) v DPP [2002] 1 AC 800 [v1/3] had already conducted the

balancing exercise on the merits and held the blanket ban was not disproportionate,

which was binding upon it (§108). The Appellants do not dispute that Pretty was

binding upon the Court of Appeal, but submit the Supreme Court should not follow that

decision for the reasons at §93ff, below.

70. Second, more fundamentally, the Court of Appeal ruled that “where the margin of

appreciation applies, the court should give considerable leeway to Parliament

recognising what is sometimes termed a wide margin of judgment” (§110). Re. G

(Adoption: Unmarried Couple) [2009] 1 AC 173 [v1/2] was a ‘wholly exceptional case’

(§110). The ‘guiding principle’ remained that set out in Ullah v Special Adjudicator

[2004] 2 AC 323 that domestic Courts should ‘keep pace’ with the Strasbourg Court, ‘no

more, but certainly no less’ and that (§112):

... it would be inappropriate for the courts to fashion domestic Article 8(1) rights exceeding the protection afforded by the requirements of Strasbourg in direct opposition to the will of Parliament as reflected in section 2 of the 1961 Act. The courts have to concede a very wide margin of judgment to Parliament in a controversial area raising difficult moral and ethical issues

27

such as assisted suicide, and the current law cannot conceivably be said to stray beyond it.

71. It is respectfully submitted that the Court of Appeal adopted too narrow a view of the

domestic Court’s role in reviewing the compatibility of domestic legislation falling

within the State’s margin of appreciation, for three reasons.

72. First, the principle in Ullah v Special Adjudicator [2004] 2 AC 235 (at §20) does not

apply to those issues in respect of which Strasbourg accords to national authorities a

‘margin of appreciation’: Re. G (Adoption: Unmarried Couple) [2009] 1 AC 173 [v1/2],

29-32, 50, 120, 127. As Lord Hoffman observed:

31 These remarks were not, however, made in the context of a case in which the Strasbourg court has declared a question to be within the national margin of appreciation. That means that the question is one for the national authorities to decide for themselves and it follows that different member states may well give different answers.

73. Second, it is evident from the Strasbourg Court’s judgment in Koch v Germany (2013)

56 E.H.R.R. 6 [v1/10] that, applying the principle of subsidiarity, it envisages domestic

Courts, not the supranational Court, as having the primary role in determining the

necessity and proportionality of national measures: see §§69-72. It follows by necessary

implication from the Strasbourg Court’s decision in Koch that it considered it would be

open to the German Courts, having carried out the necessary balancing exercise under

Article 8(2), to find the relevant provision of German law to be a disproportionate

interference and therefore not ‘necessary in a democratic society’, notwithstanding the

State’s wide margin of appreciation. Otherwise, there would have been no point in

finding a breach of Article 8 in its procedural aspect by reason of the German Courts’

failure to conduct such a balancing exercise the first time around.

74. This is consistent with other Strasbourg and domestic jurisprudence, in particular the

Supreme Court’s decision in Re. G (Adoption: Unmarried Couple) [2009] 1 AC 173

[v1/2]. Under the principle of subsidiarity (referred to in Koch v Germany (2013) 56

E.H.R.R. 6 [v1/10], at §71) national authorities are accorded a margin of appreciation

because the ‘machinery of protection established by the Convention is subsidiary to the

national systems safeguarding human rights. The Convention leaves to each contracting

state, in the first place, the task of securing the rights and freedoms it enshrines’

28

(Handyside v United Kingdom [1976] 1 E.H.R.R. 737, §48, cited in Re. G, §127. The

rationale for this is explained in Frette v France (2002) 38 E.H.R.R. 438, cited by Lord

Hoffman in Re. G, §22:

‘By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions’.

75. The domestic authorities to whom the Strasbourg Court affords the ‘margin of

appreciation’ includes the national courts: see Re. G (Adoption: Unmarried Couple)

[2009] 1 AC 173 [v1/2], §127, 130. Indeed, part of the justification for affording the

domestic authorities a ‘margin of appreciation’ is that the domestic courts, in particular,

are expected to have carried out their own assessment of the compatibility of the

domestic measure with the Convention rights: A v Home Secretary (No. 1) [2005] 2 AC

68 [v2/12], §§29, 37-42, 80, 107-108, 113-114, 131, 176, esp. §40, 42 (Lord Bingham)39,

113 (Lord Hope)40. Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10] takes these

principles further by imposing an obligation, derived from the procedural rights implicit

in Article 8, on the domestic Courts to carry out such an exercise. This assessment must

be carried out on the merits: ibid, §§54, 65-72.

76. Third, the Court of Appeal was wrong to accord a ‘very wide margin of judgment’ to

Parliament. Where the domestic Court is reviewing the compatibility of legislation, the

proper approach is as set out Wilson v First County Trust No. 2) [2004] 1 AC 816

[v4/32], §61, per Lord Nicholls. It is for the domestic courts themselves to form a

judgment as to whether a convention right has been breached, even where the

compatibility of primary legislation falls to be determined (Wilson v First County Trust

No. 2) [2004] 1 AC 816, §61-62), although appropriate ‘weight’ should be given to the

considered judgment of the democratically elected legislature: see Re. G (Adoption:

Unmarried Couple) [2009] 1 AC 173 [v1/2], at §130 per Lord Mance, having regard to

the following factors:

39 §42: The A-G was ‘wrong to stigmatise judicial decision-making as in some way undemocratic’. 40 See also Jack Straw, Secretary of State for the Home Department, House of Commons Committee Stage for the Human Rights Bill, Official Report, HC 3 June 1998, Vol. 313, c. 424: ‘Through incorporation we are giving a profound margin of appreciation to British Courts to interpret the Convention in accordance with British jurisprudence as well as European jurisprudence’, in ‘Legislating for Human Rights, p. 248 [v11/81].

29

(a) The nature of the right in question: the more fundamental the right, the more the

court should make its own assessment rather than give weight to that of another

body (Re. G (Adoption: Unmarried Couple) [2009] 1 AC 173 [v1/2], §130). The

delineation and vindication of rights is particularly within the province of the

Courts: AF v SSHD [2010] 2 A.C. 269 [v2/13], §76.

(b) Whether the issue falls within an area in which the legislature, executive or

judiciary can claim particular expertise (Re. G, §130). Matters of social policy

are, broadly, more suitable for determination by Parliament (Wilson v First

County Trust No. 2) [2004] 1 AC 816 [v4/32], §71)41. In this context judgments

about public confidence or public opinion by the democratically elected

legislature may be taken to represent ‘the conscience of the majority of the

nation’ (Countryside Alliance v AG [2008] 1 AC 719 [v3/19], §45, per Lord

Bingham).

(c) On the other hand, in particularly hotly disputed areas of social policy it may be

more important for the Court to form its own judgment. In particular, where the

majority, on moral grounds, take measures (or refuse to remove measures) that

infringe the rights of the minority or where the issues are too contentious for

Palriament to reach a consensus42 the courts may be required to step in43. It is a

primary function of the courts in a democracy44 to safeguard the rights of even

41 See also Watts v United Kingdom (2010) 51 EHRR SE5, para 100 [v11/80]: “Of further relevance in conducting the balancing act required by art.8(2) is the wide margin of appreciation afforded to states in issues of general policy, including social, economic and health-care policies. It should be recalled that national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions.” 42 See the discussion by Lord Walker delivered 4 September, 2012 at Banco Court, Supreme Court of Victoria, pp. 18-21 [v11/82]. 43 A judicial solution may even have certain advantages over the ‘all or nothing’ approach of legislation: see per Sedley LJ in Re. F (Adult: Court’s Jurisdiction) [2001] Fam 38 [v11/71], p. 56A-F 44 There is nothing inconsistent with democracy for a Court to rule that a measure which disproportionately interferes with the rights of a minority is unlawful. Democracy is to be distinguished from majoritarianism: in the latter, the will of the majority can trample the rights of the minority, regardless of the consequences. In the former, there are limits on the extent to which the majority can override the rights of minorities. “Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'.”: Handyside v The United Kingdom (1979-80) 1 E.H.R.R. 737 [v11/78], para 49

30

unpopular minorities against breaches of their Convention rights by the majority:

see Re. G (Adoption: Unmarried Couple) [2009] 1 AC 173 [v1/2], §122;

Countryside Alliance v AG [2008] 1 AC 719 [v3/19], §158. As Lord Brown

observed in Countryside Alliance, §158 ‘Sometimes the majority misuses its

powers. Not least this may occur when what are perceived as moral issues are

involved’. Lord Hope in Re. G made the same point, at §48: ‘The more

contentious the issue is, the greater the risk that some people will be

discriminated against in ways that engage their Convention rights’. There may

also be particular “cultural traditions” which make it unlikely that a majority in

the legislature will act to end a Convention violation, as Baroness Hale pointed

out in Re. G at §122.

(d) The extent to which the necessity for the measure that causes the interference has

been debated by the legislature, in particular one that imposes an automatic,

blanket prohibition on activity falling within a protected right (Hirst v United

Kingdom (2006) 42 E.H.R.R. 41 [v5/34], §79).

(e) The age of the measure in question. In Wilson v First County Trust No. 2) [2004]

1 AC 816 [v4/32], §61 Lord Nicholls observed that the value judgment the court

must make is made ‘by reference to the circumstances prevailing when the issue

has to be decided’, not at the time the measure was introduced.

(f) The extent to which there is a consensus internationally – or, it is submitted,

nationally - that the measure is, or is not, an appropriate one, by parity of

reasoning with the Strasbourg Court’s approach, see §50 above.

77. Thus, while appropriate weight must be given to the views of Parliament, the domestic

courts cannot simply mirror the ‘margin of appreciation’ applied by the Strasbourg Court

to its relationship with the domestic legislature; otherwise the concept of subsidiarity and

the requirement for domestic Courts to strike their own balance in relation to matters

falling within the margin of appreciation would be completely undermined.

78. An idea of the kind of exercise that will meet the requirements of Article 8 can be found

in Stubing v Germany, (2012) 55 EHRR 24 [v5/38], which involved a challenge to the

compatibility with Article 8 of the German domestic law criminalising incest. In Stubing

31

no violation was found, because the German Federal Constitutional Court did carry out

its own assessment of the proportionality of the measure in question, which the ECtHR

considered to be of particular relevance when concluding that the German authorities had

stayed within their margin of appreciation and that there had been no breach of Article 8:

see §§15-25, 55-67, especially §§63, 66.

79. In conclusion, even in an area falling within the State’s margin of appreciation, the

domestic Courts are entitled under the Human Rights Act 1998 and (following Koch v

Germany (2013) 56 E.H.R.R. 6 [v1/10]) obliged by Article 8 to carry out the balancing

exercise for themselves, on the merits, an inquiry which will be substantially more

intensive than that conducted by the Strasbourg Court applying the ‘margin of

appreciation’. In doing so, they must give ‘weight’ to the views of the domestic

legislature but not the ‘very wide margin of judgment’ accorded by the Court of Appeal

in this case. The weight that should be given in the balancing exercise in the present case

is considered at §§91ff, below.

G. Article 8(2): s 2(1) constitutes a disproportionate interference in the Appellants’

cases which cannot be avoided by the DPP’s discretion in s 2(4)

80. The Appellants set out at §§93ff below their reasons why the Supreme Court should

depart from R (Pretty) v DPP [2002] 1 AC 800 [v1/3] on the Article 8(2) issue. A fresh

balancing exercise should now be carried out in accordance with the principles set out at

§§67ff above and on the basis of the information now before the Court. The focus of that

balancing exercise must be on whether s 2(4) is being, and is capable of being, applied in

a way that saves s 2(1) from being disproportionate in cases such as the Appellants’,

namely where significant acts of medical assistance in suicide are required. The

Appellants submit that it has not and cannot be exercised in such a manner and,

accordingly, s 2(1) constitutes a disproportionate interference with their Article 8 rights.

81. It is accepted that, where minor acts of non-medical assistance45 to those whose decision

has been freely made are concerned, the flexibility introduced by the DPP’s discretion

under s 2(4) does allow s 2(1) to be applied in a proportionate manner (although this is

45 Or even minor acts of medical assistance of the kind that AM seeks, provided the Policy is suitably amended in accordance with the Court of Appeal’s judgment.

32

subject to the point made at §87, below). That is the effect of the judgments in Pretty v

United Kingdom (2002) 35 E.H.R.R. 1 [v1/11] and explained by the House in R (Purdy)

v DPP [2010] 1 A.C. 345 [v1/4]. However, it is now clear, for the reasons developed at

§§9ff above, that the DPP’s discretion does not allow s 2(1) to be operated

proportionately in cases where medical assistance that is more than ‘minor’ is required,

such as in the Appellants’ cases. That is not because of any flaw in the policy but of the

underlying law: see §22, above. In particular, it is a consequence of limitations in a law

which is intended to strike the necessary Article 8 balance by the mechanism of an

ostensibly blanket ban, ameliorated only by a prosecutorial ‘public interest’ discretion in

the DPP. Her discretion is limited by the fact that, first, the ‘public interest’ test is not to

be equated with the ‘proportionality’ test and, second, because of the constitutional

limitations on the DPP’s function she is not permitted to adopt a policy which exempts

persons in the Appellants’ situation from the effects of s 2(1), which is what is required

for them to be able to give practical effect to their Article 8(1) rights. The limits of her

discretion – which were not evident at the time of Pretty v United Kingdom (2002) 35

E.H.R.R. 1 [v1/11] and R (Purdy) v DPP [2010] 1 A.C. 345 [v1/4] – have only become

apparent following the publication of the Policy and its application in cases such as the

Appellants’.

82. To this extent the Appellants rely upon the Court of Appeal’s conclusion, at §106 of its

judgment, that if they are correct that the blanket ban in s 2(1) is disproportionate (above,

§52), then the DPP’s Policy is no answer and it would be necessary to disapply the law in

their circumstances. As the Master of the Rolls put it:

“It is a curious kind of right which is secured only by the exercise of a discretion by the prosecutor not to enforce a breach”.

83. They also rely upon the following points.

84. First, the distinction that the law now makes between minor acts of assistance (which are

not prosecuted) and more substantial acts of medical assistance (which are more likely to

be prosecuted) has been drawn not because of any need to protect vulnerable persons

(above, §§17-18) but because of the limitations of the DPP’s constitutional role referred

to at §81 above, which is not a legitimate aim for the purposes of Article 8(2). It

therefore carries no weight in the balancing exercise under Article 8(2).

33

85. Second, the existing legal framework does not in fact meet the legitimate aim of

protecting life. The Supreme Court is entitled to place weight upon the findings of the

bodies referred to at §§27-46 above, in particular the Falconer Commission, that the risks

associated with the relaxation on the prohibition on assisted suicide – the ‘slippery slope’

– have not eventuated in those countries where it is legal, contrary to the fear of

opponents. Moreover, and in any event, the current legal framework is in fact less safe

than the kind of regulated permissive regime found in Oregon and the Netherlands, in

that it encourages other, unregulated forms of assisted dying (above, §§6ff) that put

patients at greater risk and because it excludes, rather than requires, medical assistance

and does not allow for prior assessment and support of those contemplating assisted

suicide (above, §§9ff). As the Falconer Commission put it, the regime is ‘inadequate and

incoherent and should not continue’ (above, §22).

86. Third, the continuing restriction on assisted suicide for those requiring substantial acts of

medical assistance whose decision is ‘taken freely and with full understanding of what is

involved’, such as the Appellants, goes beyond what is required by the positive

obligations to protect life under Article 2 and is, ipso facto, disproportionate for the

reasons given at §§61ff, above.

87. Fourth, the practice and policy of not prosecuting offences of assisted suicide where the

individual’s decision is freely made demonstrates that there is not a pressing need for

such a prohibition in such cases (above, §60).

88. Fifth, for the reasons developed at §§9-22 above, the circumstances in which assisted

suicide is permitted where the individual’s decision is taken freely lacks clear legal

guidelines and measures that enable the practical and effective enjoyment of the right,

particularly where medical assistance is required. The continuing restriction is therefore

arbitrary and disproportionate; further or alternatively is not in accordance with the law;

further or alternatively the State is in breach of its positive obligations under Article 8

(see above, §64).

89. Sixth, the effect of the law is arbitrary and discriminatory in its effects, in that it

disproportionately affects persons with the most serious disabilities from exercising their

Article 8(1) rights while permitting those with less serious disabilities, and those

requiring non-medical intervention, to do so, without any objective justification. This is

34

also relevant to the question of Article 14 discrimination46, but this is not separately

pursued for the reasons given above, at §66.

90. Accordingly, subject to the question of what countervailing weight is to be given to

Parliament’s views at §§91ff below, the State can no longer discharge the ‘heavy burden’

upon it of establishing that the prohibition on assisted suicide in cases such as the

Appellants’ is no more than necessary to accomplish the legitimate objective of

protecting life (namely those who are not capable of making an informed decision, see

Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11] §§69 and 74, above §49) and

does not strike a fair balance between the rights of the individual and the interests of the

community.

H. Article 8(2): The weight to be given to Parliament’s views in the balancing exercise

91. Having regard to the considerations at §76, above, this is an area where the views of

Parliament expressed in the 1961 Act should be given appropriate but not determinative

weight. The fact there is a consistent and substantial majority of the public in favour of a

relaxation in the laws of assisted suicide (above, §1, see also R (Purdy) v DPP [2010] 1

A.C. 345 [v1/4], §66 per Baroness Hale) qualifies the weight to be attached to those

views, not least given the age of the original measure and the fact there has been no

recently expressed view by the democratically elected legislature47 which can be said to

constitute ‘the conscience of the majority of the nation’ (Countryside Alliance v AG

[2008] 1 AC 719 [v3/19], §45, per Lord Bingham). Although in 1997 a private members

bill to support euthanasia, the Doctors Assisted Dying Bill, was introduced into the

House of Commons and was defeated [v8/51], there has been no substantive debate in

the House of Commons on the continuing requirement for the ostensibly blanket

prohibition on assisted suicide since 1961. The debates that led to the defeat of Lord

Joffe’s 2005 Bill ‘Assisted Dying for the Terminally Ill’48 took place in the House of

46 Applying the general principles recently articulated by the Grand Chamber in Eweida v UK (2013) 57 E.H.R.R. 8, paras 85-88 [v11/76] 47 The Appellants submit a distinction is to be drawn between the views of the House of Commons, which has ‘direct democratic legitimation’ (see Watts, para 100 [v11/80]), and the House of Lords, which does not. 48 Assisted Dying for the Terminally Ill - Hansard HL Debs 12 May 2006, Cols 1184-1295 [v8/52]

35

Lords49. Recent debates on the issues in the House of Commons have been an

adjournment debate in 200850, with no vote taken, and the debate in 201251 which led to

a motion welcoming the DPP’s Assisted Suicide Policy and calling for improvements in

palliative care. The amendments to the Suicide Act 1961 by the Coroners and Justice

Act 2009 were intended only to clarify the law, not to change it (Court of Appeal

judgment, §21 (App. I, p. 30) and were not accompanied by any substantive debate in

the House of Commons on the continuing necessity of a ban in cases where the

individual has capacity to consent. The debate on Lord Falconer’s amendment to the

Coroners’ and Justice Bill 200952 took place in the House of Lords, not the Commons.

92. The fact that this is an area in which moral and ethical opinions are strongly held on both

sides of the debate does not mean, as the Court of Appeal judgment suggests (see

judgment §112 (App. 1, p. 54)), that the Courts have little if any part to play in

conducting the balancing exercise under Article 8(2). As the references in §76(c) above

make clear, there is a danger in an area as socially contentious as the present that the

rights of the minority are not respected because, as here, the strength of the moral and

ethical views on both sides have led to the issue becoming deadlocked, requiring the

Court to be more, not less, vigilant to ensure the balance that has been struck is not

disproportionate. Moreover, while the ‘protection of ... morals’ is a legitimate aim under

Article 8(2), it was not identified by the Strasbourg Court in Pretty v United Kingdom

(2002) 35 E.H.R.R. 1 [v1/11] as one of the aims of s 2(1) Suicide Act 1961, which were

limited to the protection of the rights of others, namely ‘those who are not in a position to

take informed decisions against acts intended to end life or to assist in ending life’: see

Pretty v United Kingdom (2002) 35 E.H.R.R. 1 [v1/11] §§69 and 74. The balancing

exercise must be limited to consideration of the extent to which the prohibition on

assisted suicide is a proportionate means of achieving that objective and not any other.

49 Which followed the House of Lords Select Committee Report recommending that a new Bill be put before Parliament: see HL Paper 86-I, 4 April 2005, pp. 81-92 [v8/45] 50 Adjournment debate on assisted dying in the House of Commons, 11 November 2008, Hansard HC Debates, Vol 482, Cols. 221WH-244WH 51 Debate on the DPPs Assisted Suicide Policy 27 March 2012 52 Which would have made it lawful to assist another to travel abroad for an assisted suicide: Debate on amendment to Coroner's and Justice Bill 2009, 7 Jul 2009, HL Debs Cols 595-634 [v8/54]

36

I. Why R (Pretty) v DPP should not be followed on the Article 8(2) issue

Pretty has already been departed from by the House in Purdy

93. R (Pretty) v DPP [2002] 1 AC 800 [v1/3] has already been implicitly departed from on

the Article 8(2) issue by the House of Lords’ decision in R (Purdy) v DPP [2010] 1 A.C.

345 [v1/4], applying the Strasbourg Court’s decision in Pretty v United Kingdom (2002)

35 E.H.R.R. 1 [v1/11]: see §§52ff above. It follows the Supreme Court is free to conduct

a fresh balancing exercise, applying the principles outlined above at §§48ff above.

Pretty should not be followed in any event

94. Alternatively, developments since R (Pretty) v DPP [2002] 1 AC 800 [v1/3] are such it

should no longer be followed, applying the principles in R (Purdy) v DPP [2010] 1 A.C.

345 [v1/4], §34.

95. First, it is not in dispute that the House of Lords’ judgment in R (Pretty) v DPP [2002] 1

AC 800 [v1/3] in relation to the applicability of Article 8(1) has since been departed

from by the House of Lords in R (Purdy) v DPP [2010] 1 A.C. 345 [v1/4] in the light of

the Strasbourg Court’s findings in Pretty v United Kingdom (2002) 35 E.H.R.R. 1

[v1/11]: see above, §47. Accordingly the decision is no longer authority for the

proposition that founded its ratio decidendi, while their Lordships’ conclusion on Article

8(2) was in any event obiter dicta.

96. Second, even if (contrary to the submission at §52ff) the House in R (Purdy) v DPP

[2010] 1 A.C. 345 [v1/4] cannot be taken to have departed from its earlier decision in R

(Pretty) v DPP [2002] 1 AC 800 [v1/3] on the Article 8(2) issue, the statements of the

majority to the effect that a blanket ban on assisted suicide is capable of violating Article

8 are powerfully persuasive, and should be followed in preference to those of the House

in Pretty.

97. Third, and in any event, the ‘law’ has changed since the House’s decision in R (Pretty) v

DPP [2002] 1 AC 800 [v1/3] so that an entirely different balancing exercise is called for.

Pretty was concerned with s 2(1) in so far as it constituted a blanket and indiscriminate

ban on assisted suicide, applying to all persons and without drawing any distinction

between willing victims and others: see §§17, 29, 36, 74, 97, 98, 107. Since then, a

broad category of individuals (those whose decision has been freely taken, albeit with

certain exceptions in cases such as the Appellants’) have been removed from the ambit of

37

the prohibition in s 2(1) by the exercise of the DPP’s discretion under s 2(4), as

reinforced by the approach of the civil Courts: see the discussion at §§9 and 23, above.

98. Fourth, the Supreme Court has before it the conclusions of the Falconer Commission and

the other expert bodies referred to at §§27-46 above, which demonstrate that the existing

legal regime may actually be less safe for vulnerable people than a permissive regime

such as that in Oregon and the Netherlands. These factors are highly relevant to the

balancing exercise that is to be conducted under Article 8(2). In R (Pretty) v DPP [2002]

1 AC 800 [v1/3] the House limited its consideration of the underlying issues, in

particular the risks to vulnerable people of any relaxation in the law, to some brief

references to the 14th Report of the Criminal Law Revision Committee, Offences

Against the Person (1980, Cmnd 7844), pp 53, 59-61 and the House of Lords Select

Committee on Medical Ethics (HL 21-1, 1994): see per Lord Bingham at §29 and Lord

Steyn at §50. On this basis the House concluded that the risk to vulnerable people

provided ‘ample grounds’ to justify any interference under Article 8(2) (§§29-30, 62,

64). Having regard to the evidence now available, including the views of the Falconer

Commission that the status quo is more risky than a permissive regime such as that in

Oregon and the Netherlands, the Court is entitled to depart from the conclusions of the

House as to whether there remains a pressing social need to continue the prohibition on

assisted suicide in cases such as the Appellants’.

99. Fifth, as we point out at §62 above, it was unclear at the time of R (Pretty) v DPP [2002]

1 AC 800 [v1/3] whether Article 2 might impose a positive obligation on the state to

protect a person in Ms. Pretty’s position. Lord Bingham placed some weight upon this

consideration, at §8 of his judgment. Although he accepted that the State’s obligation to

protect Mrs. Pretty’s life was ‘weaker’ than that owed to a prisoner, for example, it was

evidently a factor in his decision that the ban in s 2(1) was justified under Article 8(2).

The position has since been clarified by the Strasbourg Court’s decision in Haas v

Switzerland (2011) 53 E.H.R.R. 33, §51 [v1/9] that there is no positive obligation on the

State to have protective measures in place where the individual’s decision is ‘taken freely

and with full understanding of what is involved’ (§54). This is highly relevant to –

indeed, determinative of – the Article 8(2) balancing exercise for the reasons developed

at §§61ff and 89 above, namely that the ambit of the positive obligation under Article 2

defines the limit of what is ‘necessary’ by way of restrictions under Article 8(2).

38

100. Sixth, there have been significant developments in the Strasbourg Court case-law since R

(Pretty) v DPP [2002] 1 AC 800 [v1/3] which call for a reconsideration of the balance

struck in the light of the principles set out at §§48ff above, notably Pretty v United

Kingdom (2002) 35 E.H.R.R. 1 [v1/11], Haas v Switzerland (2011) 53 E.H.R.R. 33, §51

[v1/9], Koch v Germany (2013) 56 E.H.R.R. 6 [v1/10], §52; and Gross v Switzerland,

App. No. 67810/10, 14 May 2013 [v1/8].

J. Article 8(2): Whether the Supreme Court should conduct the Article 8(2) balancing

exercise itself or remit it to the High Court for further consideration of the evidence

101. The Appellants do not invite the Supreme Court to embark upon a close study of the

evidence that is now available of the relative risks and advantages of relaxing the

prohibitions on assisted suicide, although that was their objective below and forms the

basis of their alternative submission that the case should be remitted to the High Court if

the Supreme Court agrees that R (Pretty) v DPP [2002] 1 AC 800 [v1/3] is no longer

binding. The Appellants submit that the Supreme Court can strike the necessary balance

without such a forensic exercise because it has been conducted already by a number of

expert bodies whose conclusions are remarkably similar and upon whose conclusions the

Court can place weight: above, §§27ff. However, if the Court considers that it cannot

carry out the balancing exercise without further exploration of the underlying evidential

issues, it should remit the case back to the High Court for that exercise to be conducted

along the lines of that in Carter v Canada 2012 BCSC 886 [v6/39], with appropriate

guidance as to how the balancing exercise is to be conducted.

K. Relief

102. It is integral to the Appellants’ case that an amendment to the DPP’s Policy – such as the

removal of §43(14) – cannot provide adequate protection for the Appellants’ Article 8

rights for as long as the underlying prohibition in s 2(1) remains. For the reasons

explored at §§17-18 above, it is well-established that the DPP cannot provide an

immunity against prosecution under s 2(4) nor promulgate a policy the effect of which

will be to exempt doctors providing the degree of assistance required by Tony

Nicklinson and Paul Lamb to end their lives, even in cases where the risk of prosecution

is such as to violate Article 8. The Appellants agree with the conclusion of the Court of

Appeal that, if they are successful in establishing that the prohibition on assisted suicide

39

in s 2(1) is disproportionate in cases such as theirs, it will be necessary to disapply the

law to give effect to their Article 8 rights (judgment, §106, cited at §82 above).

103. The domestic authorities – including the Supreme Court – are under a positive obligation

to establish a legal regime providing a practical and effective means by which the

Appellants (in practice, Paul Lamb) can vindicate their Article 8 rights (above, §64-65,

above) in those cases where the DPP’s power under s 2(4) provides an inadequate

remedy. This must include an effective guarantee against prosecution, in advance, for

any medical professional who is willing to provide assistance. Unless and until a

legislative solution is introduced, this can only be achieved by the Supreme Court

reading in a defence into s 2(1) using s 3 Human Rights Act 1998. In the absence of any

equivalent under the Human Rights Act 1998 to the ‘constitutional exception’ invoked

by the BCCA in Carter v Canada,[2013] BCCA 435 [v7/40] §§325-336, the Appellants

submit that the defence of necessity is the most suitable option. Such a development

would be consistent with the principles recently stated by the Supreme Court in Osborn v

Parole Board [2013] UKSC 61, §§54-63. Necessity was the vehicle by which the Dutch

Supreme Court legalised assisted suicide in Holland, in 1984 in Schoonheim and the

possibility that necessity might afford a defence even to a charge of murder in a case of

‘mercy killing’ was explicitly left open by the Supreme Court of Canada R v Latimer

[2001] 1 SCR 3, §40.

104. The defence of necessity is available as a defence to all offences, except murder53,

although the precise limits of its ambit are uncertain. The development of the defence

falls squarely within the competence of the courts54 and it has been applied to offences

created by statute even without the mechanism of s 3 Human Rights Act 1998: R v

Pommell [1995] 2 Cr. App. R. 607 [v4/28], where the defence was held to be available to

an offence of possession of a firearm contrary to section 5(1)(a) of the Firearms Act

53 The Appellants no longer contend that necessity may also be available to a charge of murder. 54 Brooke LJ in the Conjoined Twins [2001] Fam 147 [A*/*] case referred, with approval, to the Law Commission Report published in 1985 prepared by three professors of criminal law, who included Professor John Smith, ‘Report on Criminal Law: Codification of the Criminal Law (Law Com No 143) and their recommendation at §13.26, p. 120: “In these circumstances our main proposal is that necessity should remain a matter of common law. That is, to the extent that the defence is now recognised, it should be unaffected by the Criminal Code Act; and (probably more important, because the present status of the defence is so limited and uncertain) the courts should retain the power that they now have to develop or clarify the defence.”

40

1968: in R v Conway (1989) 88 Cr. App. R. 159 to a charge of reckless driving contrary

to the Road Traffic Act 1972 (c. 20), s. 2 (both referred to in R v Quayle [2005] 2 Cr.

App. R. 34, §40-41); and R v Bourne [1939] KB 687 [v2/15] to a charge under s. 58 of

the Offences Against the Person Act, 1861 of using an instrument with intent to procure

miscarriage.

105. The ingredients of the defence of necessity are as set out in Stephen, Digest of the

Criminal Law, p. 9, namely that an act which would otherwise be a crime may in some

cases be excused if the defendant can show that: (a) it was done only in order to avoid

consequences which could not otherwise be avoided and which, if they had followed,

would have inflicted upon him, or upon others whom he was bound to protect, inevitable

and irreparable evil; (b) that no more was done than was reasonably necessary for that

purpose; and (c) that the evil inflicted by it was not disproportionate to the evil avoided:

Archbold (2012), Chapter 17, §17-128; Conjoined Twins [2001] Fam 147 [v3/18], 219

ff, 225e, 240d (Brooke LJ); 255f-h (Walker LJ); 203a-c (Ward LJ).

106. It is illuminating that in 1957, Prof. Glanville Williams wrote that the combination of

consent, unbearable suffering and a reduced span of useful life might together form the

basis of a defence of necessity to a charge even of murder: see the Sanctity of Life and

the Criminal Law, 1957, p. 319 (cited by Charles J in his judgment of 12 March 2012,

§10 (App I, p. 124).

Just as in the case of Rex v Bourne, the jury were directed that the unborn child may be destroyed for the purpose of preserving the yet more precious life of the mother, so, in the case of voluntary euthanasia, it is possible to imagine the jury being directed that the sanctity of life may be submerged by the overwhelming necessity of relieving unbearable suffering in the last extremity, where the patient consents to what is done and where in any event no span of useful life is left to him.

107. Glanville Williams also wrote in his Textbook of Criminal Law, 2nd ed (1983), at p. 604,

again in the context of a defence to murder (cited in the Conjoined Twins [v3/18] case by

Brooke LJ (at 227)):

We do regard the right to life as almost a supreme value, and it is very unlikely that anyone would be held to be justified in killing for any purpose except the saving of other life, or perhaps the saving of great pain or distress.

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108. While the Appellants no longer contend for a change to the law of murder, Glanville

Williams’ approach would apply a fortiori to the lesser offence of assisted suicide.

109. The Appellants submit that the Supreme Court should nevertheless limit the availability

of the defence to cases where there has been prior judicial authorisation where the Court

is satisfied that the individual who is seeking the assistance is suffering from a medical

condition that causes unbearable suffering; there are no alternative means available by

which his suffering may be relieved; and he has made a voluntary, clear, settled and

informed decision to end his life. Such a limitation is necessary to comply with the

State’s obligation under Article 2 to protect those whose decision is not ‘taken freely in

full understanding of what is involved’: see §61 above.

110. There is precedent for an approach requiring prior judicial authorisation of acts that

would or might otherwise be criminal offences. The House of Lords in Airedale NHS

Trust v Bland [2003] AC 789 [v2/14] laid down a rule (albeit one of practice, rather than

law) that in future similar cases where it was proposed to withdraw life-sustaining

treatment from a patient in PVS an application should first be made to the High Court:

see per Lord Keith at [1993] AC 789, 859 and Lord Goff at 847. In Re. F (Mental

Patient: Sterilisation) [1990] 2 A.C. 1 [v3/21] the House again laid down a rule of

practice, if not law, that sterilization operations on those who lack capacity should not

take place without prior judicial sanction: see 56E-57A (Lord Brandon) and 79G-H

(Lord Goff). Lord Griffiths went further, holding that as a matter of law no such

operation could be carried out without prior judicial sanction: see 70F-71B. The BCCA

in Carter v Canada,[2013] BCCA 435 [v7/40] §§325-336 also stipulated that any

‘constitutional exemption’ disapplying s 241(b) of the Canadian Criminal Code in an

individual case could only be granted on prior application to a judge, who should be

satisfied that the individual met the criteria stipulated by Smith J at first instance, §1413,

which included conditions similar to those which the Appellants submit are appropriate

in this case.

111. Alternatively, the Appellant Paul Lamb seeks a declaration that s 2(1) Suicide Act 1961

is incompatible with his rights under Article 8 in so far as it prevents him from obtaining

medical assistance to end his life. This would be a far less satisfactory remedy from his

perspective, leaving any solution to his predicament dependent upon the introduction of

appropriate legislation, which would arguably not provide an effective remedy for the

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breach of his Article 8 rights for the purposes of Article 13 of the Convention (Burden v

United Kingdom, (2008) 47 E.H.R.R. 38 [GC], §§40-44, applied in MM v United

Kingdom, App. No. 24029/07, 13 November 2012, §178 and A, B & C v Ireland (2011)

53 EHRR 13 [v5/33], §150). It would, nevertheless, avoid what might otherwise (albeit

mistakenly) be seen as an inappropriate intrusion by the Courts into the legislative sphere

and would provide timely legal guidance to Parliament as to the minimum requirements

of any law that might be passed following the introduction of Lord Falconer’s Assisted

Dying Bill (see above, §37).

112. Accordingly, and for all these reasons and summarised at para 3 above, the Appellants

respectfully submit the appeal should be allowed and the relief set out in the Appellant’s

Notice, Section 6, granted.

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PAUL BOWEN Q.C. Leading Counsel for the Appellants

.............................................................................................

GUY VASSALL-ADAMS Junior Counsel for the Appellants

.............................................................................................

Dated this 18th day of November 2013

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