R (Nicklinson) v Ministry of Justice; R (on the application of AM) v The Director of Public Prosecutions  UKSC 38
Judgment handed down on 25 June 2014
Issues arising from this case
This appeal is concerning the law in relation to assisted suicide and whether it contravenes with the European Convention on Human Rights (ECHR) Article 8 right to respect for private and family life. This appeal also raises the question as to whether the 2010 code published by the Director of Public Prosecutions (DPP) relating to prosecutions of those who are alleged to have assisted suicide is lawful.
Suicide is no longer recognised as a crime in England and Wales since s.1 of the Suicide Act 1961 came into force. However, encouraging or assisting a suicide is still recognised as a crime under s.2 of the Suicide Act 1961, carrying a maximum sentence of 14 years in prison, but no prosecutions can be brought without the permission of the DPP. The DPP published guidelines in relation to the policy under s.2 of the Act following a decision of the House of Lords in Purdy v DPP (2009) UKHL 45. These guidelines outline mbthe policy that prosecutors must adhere to in respect of cases of encouraging or assisting suicide.
The main points are:
- A person commits an offence under section 2 of the Suicide Act 1961if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide. This offence is referred to in this policy as "encouraging or assisting suicide". The consent of the Director of Public Prosecutions (DPP) is required before an individual may be prosecuted.
- The offence of encouraging or assisting suicide carries a maximum penalty of 14 years' imprisonment. This reflects the seriousness of the offence.
- Committing or attempting to commit suicide is not, however, of itself, a criminal offence.
- The act of suicide requires the victim to take his or her own life.
- It is murder or manslaughter for a person to do an act that ends the life of another, even if he or she does so on the basis that he or she is simply complying with the wishes of the other person concerned.
- So, for example, if a victim attempts to commit suicide but succeeds only in making him or herself unconscious, a person commits murder or manslaughter if he or she then does an act that causes the death of the victim, even if he or she believes that he or she is simply carrying out the victim's express wish.
The DPP also sets out within these guidelines where a prosecution is more likely to be required as follows:
- A prosecution is more likely to be required if:
- the victim was under 18 years of age;
- the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;
- the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;
- the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;
- the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;
- the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;
- the suspect pressured the victim to commit suicide;
- the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;
- the suspect had a history of violence or abuse< the victim;
- the victim was physically able to undertake the act that constituted the assistance him or herself;
- the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;
- the suspect gave encouragement or assistance to more than one victim who were not known to each other;
- the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
- the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;
- the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present;
- the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.
The DPP also sets out where a prosecution is less likely to be required:
- A prosecution is less likely to be required if:
- the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
- the suspect waswholly motivated by compassion
- the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
- the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
- the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
- the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
Background to this case
Mr Nicklinson suffered a catastrophic stroke in 2005 resulting in complete paralysis, save for slight movement of his head and eyes. He wanted to end his life but was unable to do so without assistance, other than by self-starvation. Mr Nicklinson applied to the High Court for a two points. (i) A declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under Article 8 of the ECHR. The High Court refused both forms of relief; he then declined all food and died of pneumonia on 22 August 2012. Mr Nicklinson’s wife was added as a party to the proceedings and pursued an appeal on Mr Nicklinson’s behalf. Mr Lamb was also added as a claimant. Mr Lamb was also paralysed entirely apart from his right hand, a condition which was irreversible and he wished to end his life. He applied for the same relief as Mr Nicklinson above.
In the second appeal an individual known as Martin suffered a brain stem stroke in August 2008; he is almost completely unable to move and his condition is incurable. Martin wishes to end his life by travelling to Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. Martin began proceedings seeking an order that the DPP should clarify, and modify, his the 2010 Policy to enable responsible people such as carers to know that they could assist Martin in committing suicide through Dignitas, without the risk of being prosecuted. Martin’s claim failed in the High Court, but his appeal was partially successful, in that the Court of Appeal held that the 2010 Policy was not sufficiently clear in relation to healthcare professionals.
Mrs Nicklinson and Mr Lamb appealed to the Supreme Court in the first appeal and the DPP appealed and Martin cross-appealed the second appeal.
Supreme Court judgment
First appeal: is the present law on assisting suicide incompatible with Article 8?
The Supreme Court were unanimous in their decision, that this is a domestic question for the United Kingdom courts to decide under the Human Rights Act 1998. The justices held that according to the case law of the European Court of Human Rights, the question whether to impose a general ban on assisted suicide lies within the margin of appreciation of the United Kingdom. The court held a unanimous view that s. 2 engages Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die. Accordingly, it can only be a justified interference if it satisfies the requirements of Article 8(2), in that it is “necessary in a democratic society” for one or more of the purposes specified in that article, which in the present context would be “for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others”.
The court were of the view that it would be inappropriate to declare s. 2 incompatible with Article 8 before giving Parliament the opportunity to consider the position, in light of this case.
The court did state that their main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were to be permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so. It is clear that the judiciary, whilst acknowledging that there are valid and justified reasons for assisted suicide, that by restricting the law entirely, it protects those who are at most risk.
Lady Hale and Lord Kerr however, stated that they would have issued a declaration of incompatibility given these circumstances. They hold that, in making no exception for those whose expressed with to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide is incompatible with Article 8. Lady Hale drew attention to the similarity between a procure for identifying those who have made such an autonomous decision but require some held to carry it out and other life and death decisions currently made in the Family Division of the High Court and the Court of Protection. Lord Kerr added that there was no rational connection between the aim of s. 2(1) and the interference with the Article 8 right.
The court were certainly of the view that the issue needs to be reviewed however, that it was a matter which Parliament are more qualified to decide and the court was to respect Parliament’s assessment.
Second appeal: is the 2010 Policy lawful?
s.2 (4) of the Suicide Act 1961 states:
no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions
The court stated in their judgment that it was one thing for the court to decide that the DPP must publish a policy (as noted above), and quite another for the court to dictate what should be in that policy. The court decided that the exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest.
The court did provide examples where the DPPs guidelines do not adhere to logic in practice and as such, the 2010 Policy may require amendment however, not to the degree where the court can order such a review to be taken.
Outcome of the case
Full judgment here: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0235_Judgment.pdf
Press summary here: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0235_PressSummary.pdf