R (Nicklinson) v Ministry of Justice

The Supreme Court considered whether the criminal prohibition on assisting or encouraging suicide (section 2 of the Suicide Act 1961, as re-enacted by section 59 of the Coroners and Justice Act 2009) is compatible with article 8 of the European Convention on Human Rights and whether the Director of Public Prosecutions' published 2010 policy on prosecutions under that provision is legally sufficient. The court analysed article 8's engagement, the margin of appreciation in Strasbourg jurisprudence (notably Pretty v United Kingdom, Haas, Koch and Gross), and the Human Rights Act 1998 duties (in particular sections 3 and 4) to decide whether to read-down section 2 or to make a declaration of incompatibility.

Key legal principles and grounds for decision:

• Article 8 protects an individual's autonomy to decide how and when to die, but any interference must be "in accordance with the law" and justified under article 8(2) (proportionality).
• The Strasbourg case-law accords states a wide margin of appreciation on assisted suicide; domestic courts must nonetheless form their own view where the issue falls within that margin, taking institutional competences into account.
• The proper justification for a blanket prohibition is the protection of the vulnerable and the prevention of abuse; the proportionality assessment requires consideration of necessity and fair balance.
• The DPP's prosecutorial discretion under section 2(4) does not and cannot change the statutory prohibition into a lawful allowance; however, a clear published policy was required by Purdy to meet foreseeability/legality requirements.

The Court (majority) concluded that on the material before it it was not appropriate to make a declaration of incompatibility in respect of section 2(1) at this time: the appellants had not established that the statutory ban was disproportionate given the lack of detailed, trial-style evidence about feasible, reliable safeguards and procedures and the seriousness of the competing public interest. The Court allowed the DPP's appeal concerning the 2010 Policy and required the DPP to review and clarify the policy where necessary.

This group of appeals arose from claims by three severely disabled men (Tony Nicklinson, Paul Lamb and "Martin") who sought relief in respect of the criminal law prohibiting assistance to suicide. Nicklinson and Lamb asked the courts to recognise that in certain circumstances assistance should be lawful or, alternatively, that section 2 of the Suicide Act 1961 is incompatible with article 8. Martin sought a clearer and modified prosecutorial policy from the Director of Public Prosecutions so that carers or others could know whether assisting him to travel to, or to access services such as, Dignitas would expose them to prosecution.

Facts and procedural history

• Nicklinson: long-term tetraplegia after stroke; wished to be assisted to die but could not act without help. He died in August 2012 after refusing nutrition and treatment. He sought a declaration of lawfulness for assisted killing, or alternatively a declaration of incompatibility with article 8.
• Lamb: irreversibly paralysed, dependent on 24-hour care, wished lawful assistance to die; joined Nicklinson's appeal.
• Martin: brainstem stroke left him physically dependent and unable to travel without assistance; sought clarification and modification of the DPP's 2010 Policy to enable others to assist him to obtain a lawful assisted death abroad without risk of prosecution.
• High Court (Toulson LJ) rejected the claims: [2012] EWHC 2381 (Admin). The Court of Appeal dismissed the Nicklinson/Lamb appeals but partially allowed Martin's appeal in respect of policy clarity: [2013] EWCA Civ 961.
• Appeals to the Supreme Court were permitted: Nicklinson/Lamb (appellants) v Ministry of Justice (respondent); DPP appealed against the Court of Appeal order in Martin's case, and Martin cross-appealed.

Issues framed by the Supreme Court

1. Whether section 2 of the Suicide Act 1961 constitutes an impermissible "blanket ban" under article 8 (margin of appreciation question).
2. Whether UK courts are constitutionally empowered to decide compatibility where Strasbourg has left an issue within a state's margin of appreciation.
3. Whether, on the evidence and having regard to institutional competence and parliamentary primacy, it would be appropriate for the court to declare section 2 incompatible with article 8.
4. Whether the DPP’s 2010 Policy satisfies the Convention requirement of clarity and foreseeability (as required by Purdy), particularly as to assistance by healthcare professionals or carers.

Court’s reasoning (concise)

• The Strasbourg jurisprudence does not rule out a domestic court undertaking its own assessment where the issue lies within the margin of appreciation; domestic courts must form their own view but give weight to institutional competence and the legislature.
• The legitimate aim of section 2 is the protection of vulnerable persons; the statute is rationally connected to that aim.
• The proportionality assessment turned on whether the interference was no more than necessary and struck a fair balance. The majority found the appellants had not established, on the evidence presented, that section 2 was disproportionate because they had not demonstrated practicable, reliable safeguards that would adequately protect the vulnerable if the law were relaxed.
• For Martin, the Court accepted Purdy required an offence-specific DPP policy. The 2010 Policy set out factors for and against prosecution; the Court allowed the DPP’s appeal and required the DPP to review and, where appropriate, clarify the policy given differences of interpretation exposed in the Court of Appeal.

Outcome: the appeal by Mrs Nicklinson and Mr Lamb was dismissed; the DPP's appeal was allowed; Martin’s cross-appeal was dismissed. The Court indicated Parliament should have an opportunity to consider reform and the DPP should consider clarifying the 2010 Policy.

The Supreme Court dismissed the appeals of Mrs Nicklinson and Mr Lamb (no declaration of incompatibility at this time) and allowed the Director of Public Prosecutions' appeal in Martin’s case while dismissing Martin’s cross-appeal. The majority concluded that Strasbourg’s margin of appreciation did not preclude domestic review but, on the evidence and having regard to institutional competence and the need to protect the vulnerable, it would be inappropriate to make a declaration of incompatibility of section 2(1) at this stage; the DPP’s 2010 prosecutorial policy must be reviewed and clarified where appropriate to ensure accessibility and foreseeability.

High Court (Divisional Court) refused relief: [2012] EWHC 2381 (Admin). Court of Appeal dismissed the Nicklinson/Lamb appeals but partly allowed Martin’s appeal on policy clarity: [2013] EWCA Civ 961. Appeal to the Supreme Court: [2014] UKSC 38.