Nicklinson, R (on the application of) v A Primary Care Trust

A blanket prohibition on assisted suicide and euthanasia is compatible with Article 8 where the State has a wide margin of appreciation. Courts must still conduct the domestic proportionality exercise, but should give primary legislation considerable leeway in this morally controversial field. The common law cannot create a necessity defence which conflicts with a clear statutory prohibition.

A prosecutorial policy affecting Convention rights must be sufficiently accessible and foreseeable. A bare list of factors is inadequate if it gives no reasonable indication of how competing factors will be weighed. The DPP’s policy therefore required greater clarity for healthcare professionals and other professional helpers, without decriminalising the offence or granting immunity.

These linked appeals arose from claims by Mrs Jane Nicklinson, Paul Lamb and AM, known as Martin, who had severe physical disabilities and wished to end their lives with assistance. Mrs Nicklinson and Mr Lamb challenged the common law and the statutory prohibition on assisted suicide and euthanasia. Martin challenged the compatibility and foreseeability of the DPP’s prosecution policy under section 2 of the Suicide Act 1961.

The Divisional Court had dismissed the applications. The Court of Appeal considered whether the common law should recognise a necessity defence, whether the prohibitions disproportionately interfered with Article 8 rights, and whether the DPP’s policy gave sufficient guidance to potential professional helpers.

1. Common law. The Master of the Rolls and Elias LJ held that the courts could not create a necessity defence to euthanasia or assisted suicide. Consent, compassion and familial love did not provide a defence to murder, and the established distinction between withdrawing treatment and positively causing death remained part of the law. The statutory prohibition was clear and unambiguous. The principle of legality therefore could not be used to read it down. The constitutional choice in this complex and controversial field belonged to Parliament.
2. Article 8 and proportionality. The blanket prohibitions pursued the legitimate objective of protecting vulnerable people and were rationally connected to that objective. Although the court had to conduct the domestic proportionality exercise, the wide margin of appreciation required a light touch and considerable leeway for Parliament. The reasoning in R (On the Application of Pretty) v Director of Public Prosecutions [2001] UKHL 61 and Pretty v United Kingdom (2002) 35 EHRR 1 remained decisive on the proportionality issue. The prohibitions did not constitute a disproportionate interference with Article 8.
3. Foreseeability of the DPP’s policy. R (Purdy) v DPP [2009] UKHL 45 required an offence-specific policy identifying the facts and circumstances relevant to the DPP’s consent decision. The policy formed part of the law in the extended Convention sense. It was insufficient for class 2 cases involving healthcare professionals and other professional helpers because it gave no adequate indication of the weight attached to professional status, payment, compassion, vulnerability and the helper’s relationship with the victim. Greater clarity could be supplied without changing the criminal law or granting immunity.
4. Separate opinion and orders. The Lord Chief Justice agreed that the common law and Article 8 challenges to the prohibitions failed, but dissented on Martin’s policy challenge. He considered the policy sufficiently clear, with compassion as the central consideration, reasonable recompense not necessarily amounting to profiteering, and paragraph 43(14) directed to persons with pre-existing authority or trust. Mrs Nicklinson’s and Mr Lamb’s appeals were dismissed. Martin’s complaint concerning the policy was upheld, and the parties were invited to agree the terms of a declaration.

1. Court of Appeal (Civil Division) — [2013] EWCA Civ 961 : Mrs Nicklinson’s and Paul Lamb’s appeals dismissed; Martin’s policy challenge upheld and declaration invited.
2. High Court of Justice, Queen’s Bench Division, Divisional Court — the applications were dismissed. No reported citation for that decision was stated in the judgment.