R v Ministry of Justice

A statutory prohibition on assisting suicide engages the right to respect for private life under article 8. Domestic courts may determine its compatibility with Convention rights even though Strasbourg allows states a wide margin of appreciation.

The Supreme Court nevertheless declined to declare section 2 of the Suicide Act 1961 incompatible. The majority considered either that Parliament should determine the exceptionally sensitive moral and social questions involved, or that the evidence did not establish a sufficiently robust alternative system protecting vulnerable people.

The Director of Public Prosecutions’ policy satisfied the required standard of legality. Courts may require a clear statement of prosecutorial policy but cannot dictate exemptions from a statutory offence.

Three severely physically disabled men wished to end lives which they regarded as intolerable but could not do so without assistance. Mr Nicklinson and Mr Lamb sought declarations that section 2(1) of the Suicide Act 1961 was compatible with article 8 only if read down, or was incompatible with the Convention. Martin challenged the clarity and substance of the Director of Public Prosecutions’ policy governing prosecutions for assisting suicide.

The Divisional Court dismissed all three claims: [2012] EWHC 2381 (Admin). The Court of Appeal dismissed the Nicklinson and Lamb appeal but held that the prosecutorial policy lacked sufficient clarity concerning healthcare professionals: [2013] EWCA Civ 961; [2014] 2 All ER 32.

The central questions were whether the statutory prohibition unjustifiably interfered with article 8, whether the domestic courts could and should determine that issue, and whether the prosecutorial policy met the Convention requirement of foreseeability.

1. Disposition. The appeals of Mrs Nicklinson and Mr Lamb were dismissed by a majority of seven to two. Lady Hale and Lord Kerr would have made a declaration of incompatibility. The Director of Public Prosecutions’ appeal was allowed and Martin’s cross-appeal was dismissed unanimously.

2. Article 8 and constitutional competence. All members accepted that the prohibition on assisting suicide engaged article 8. The Strasbourg authorities permitted states a wide margin of appreciation and did not establish that a general prohibition fell outside it. A domestic court nevertheless had jurisdiction under the Human Rights Act 1998 to form its own view of compatibility. Strasbourg’s margin of appreciation does not allocate decision-making power among the domestic legislature, executive and judiciary.

3. No declaration of incompatibility. Lord Neuberger, with whose reasoning Lord Mance and Lord Wilson generally agreed, held that the court could determine compatibility but should not make a declaration on the evidence and arguments presented. The court could not be confident that a feasible and robust alternative system would protect vulnerable people adequately. Parliament should first have the opportunity to consider whether and how section 2 should be amended. Lord Sumption, Lord Clarke, Lord Reed and Lord Hughes placed greater weight on the legislative character of the competing moral and social judgments and Parliament’s institutional competence.

   Lady Hale and Lord Kerr dissented. They considered the universal prohibition disproportionate because a prior independent procedure could identify persons who had capacity, had made a free, settled and informed decision, and could not act without assistance.

4. Interpretation. Section 2 could not be read compatibly under section 3 of the Human Rights Act 1998 by extending necessity as a defence. That would contradict the statutory scheme and established authority.

5. Prosecutorial policy. The Director had complied with the order in Purdy by publishing an offence-specific policy identifying factors for and against prosecution. The required clarity must accommodate fact-sensitive prosecutorial discretion and cannot become an advance dispensation from criminal law. Although the policy appeared inconsistent with the interpretation which the Director endorsed before the court, the appropriate course was to leave her to review, confirm or reformulate it. No order compelling amendment was made.

1. United Kingdom Supreme Court: By [2014] UKSC 38, dismissed the Nicklinson and Lamb appeals, allowed the Director of Public Prosecutions’ appeal, and dismissed Martin’s cross-appeal.
2. Court of Appeal: By [2013] EWCA Civ 961; [2014] 2 All ER 32, dismissed the Nicklinson and Lamb appeal but held, by a majority, that the prosecutorial policy was insufficiently clear in relation to healthcare professionals.
3. High Court, Divisional Court: By [2012] EWHC 2381 (Admin), refused the requested declarations and dismissed Martin’s challenge to the prosecutorial policy.