Nicklinson v Ministry of Justice & Ors

At the permission or strike-out stage, a claim should proceed where the claimant shows an arguable legal basis and a real prospect that the court may grant the relief sought. The common-law defence of necessity was sufficiently open, despite established distinctions between suicide, assisted suicide, withdrawal of treatment and active euthanasia, because the authorities had not addressed the proposed combination of circumstances. It was also arguable that Convention rights affected the analysis and that an exceptional civil declaration concerning criminal liability might be available. A general challenge founded on Article 2, without reliance on the claimant’s own rights, had no realistic prospect and was a matter for Parliament.

The claimant, who had locked-in syndrome following a stroke, sought declarations concerning lawful medical assistance to end his life. He relied on necessity, Article 8 of the Convention, and Article 2. The defendant applied to strike out the proceedings or prevent them proceeding, arguing that the criminal law was settled, that legislative change was for Parliament, and that a civil court should not declare whether conduct would constitute a crime.

The court considered whether the proposed declarations had a real prospect of success or whether there was another compelling reason not to try the issues. The first two declarations concerned the claimant’s own asserted autonomy and dignity rights. The third was based principally on risks to vulnerable people and the adequacy of wider regulation.

1. Necessity. The claimant’s proposed declaration that necessity could, in defined circumstances, provide a defence to murder or assisted suicide was arguable. The authorities relied on by the defendant had not addressed the combined circumstances relied on, including unbearable suffering, capacity, lack of alternative relief, voluntary and settled choice, and controlled medical assistance. Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 provided arguable support for the proposition that the scope of necessity was not fixed and incapable of development, although its facts involved a choice between two deaths and one survival.
2. Constitutional issue and civil relief. It was arguable that the court could develop the common law despite the strong constitutional considerations surrounding contested social policy and Parliament’s previous consideration of assisted dying. It was also arguable that this was an exceptional case in which a civil court could grant a declaration concerning potential criminal liability.
3. Article 8. The claimant established an arguable case that the existing law, including its effect on a person unable physically to commit suicide, might be incompatible with Article 8. The court considered that (R) Pretty v DPP [2002] 1 AC 800 did not necessarily determine the issue at this stage, because relevant aspects of that decision were arguably obiter, the statutory context had later developed, and the present argument concerned voluntary active euthanasia and the claimant’s own rights.
4. Article 2. The third declaration had no realistic prospect. The claimant accepted that Article 2 did not confer a right to die or enlist assistance in dying. His wider challenge, based on the protection of others rather than his own rights, was a general policy question for Parliament.
5. The first two parts of the claim were not struck out and, so far as necessary, permission was given to pursue them by judicial review. The Article 2 claim was struck out and permission was refused. The claimant had sufficient interest to seek the first declaration.

First-instance proceedings. The judgment itself does not state an earlier appellate decision in the same proceedings.