Nicklinson, R (on the application of) v Ministry Of Justice

The common law does not recognise voluntary active euthanasia as a defence to murder. Creating such a defence would be a major change in controversial social policy, requiring safeguards and a framework which only Parliament could establish.

A blanket prohibition on assisted suicide is compatible with article 8. The Director of Public Prosecutions satisfies the accessibility and foreseeability requirements by identifying factors relevant to prosecution. He need not publish a scheme enabling prospective helpers to predict whether prosecution is probable in an individual case.

The claimants, Tony Nicklinson and Martin, suffered from locked-in syndrome and wished to end their lives. Their physical conditions prevented them from doing so unaided. Tony sought declarations concerning a possible common-law defence of necessity to murder, the compatibility of the law with article 8, and the mandatory life sentence for murder. Martin sought further clarification of the DPP’s policy on assisted suicide, together with related declarations concerning professional regulators.

The claims were judicial review proceedings concerning voluntary euthanasia, assisted suicide and the constitutional limits of judicial law-making. The central questions were whether the existing law required alteration by the court, whether the DPP had a further legal duty to clarify his policy, and whether the relevant law was incompatible with article 8.

1. Applications refused. The court refused both applications for judicial review. It declined to admit evidence from Carter v Canada because the court could not properly change the law on the basis of that evidence.
2. Voluntary active euthanasia remained murder at common law, irrespective of the victim’s consent or the defendant’s compassionate motive. The exceptional reasoning in Re A (Children) (Conjoined Twins: Surgical Separation) did not apply. That case involved highly unusual facts, an immediate decision, and features absent from the claimants’ circumstances.
3. The court followed the constitutional reasoning in Airedale NHS Trust v Bland and Inglis. A major and controversial change to the criminal law, involving ethical, medical and practical questions and requiring procedural safeguards, was for Parliament. Judicial development of the common law should be incremental and should not create uncertainty or usurp Parliament’s function.
4. Article 8 protected an aspect of private life comprising an individual’s ability to decide how and when to end life, but the Strasbourg authorities gave states a wide margin of appreciation. The blanket prohibition on assisted suicide was not disproportionate. That conclusion applied with added force to the prohibition on voluntary euthanasia.
5. The DPP had done what was required by R (Purdy) v DPP. His policy identified factors tending for and against prosecution while preserving a case-by-case discretion. Requiring a scheme by which professional helpers could predict whether prosecution was probable would improperly convert guidance into a policy of non-prosecution for identified classes and would cross a constitutional boundary.
6. The compatibility of section 2 of the Suicide Act 1961 with article 8 had effectively been determined by Pretty v United Kingdom and the House of Lords decision in R (Purdy) v DPP. The alternative challenge failed in any event because of the wide margin of appreciation and Parliament’s constitutional role.
7. It was unnecessary to decide whether the mandatory life sentence for murder was Convention-incompatible in a case of genuine compassionate euthanasia. The claims against the GMC and SRA consequently also failed.

First-instance judicial review proceedings. The judgment records permission granted by Charles J for Tony’s claim, but no prior merits decision was stated.