T, R (On the Application Of) v Ministry of Justice

In determining whether a judicial review concerning assisted suicide should proceed to a full evidential hearing, the court held that oral evidence and cross-examination should not be used to resolve conflicting moral, ethical and social-policy judgments. Written expert and factual material may be clarified, but adversarial challenge to differences of opinion or judgment is generally inappropriate. The court treated the Court of Appeal’s guidance in R (Conway) v Secretary of State for Justice and Others as directly applicable, notwithstanding that the guidance was technically obiter. Applications for interlocutory appeal or leapfrog certification were premature before the preliminary issue, and the substantive compatibility claim, had been determined.

The claimant sought a declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 was incompatible with his Article 8 rights. The Divisional Court had ordered a preliminary issue concerning whether the court should hear first-hand evidence and permit cross-examination on the ethical, moral and social-policy issues underlying Parliament’s prohibition on assisted suicide.

Following the Court of Appeal’s judgment in R (Conway) v Secretary of State for Justice and Others, the claimant accepted that the preliminary issue should be decided against him, but sought permission and certification for a further appeal. The central issue was whether oral evidence and cross-examination were appropriate at this stage.

1. Preliminary issue. The answer was no. The court would not permit oral evidence or cross-examination merely to challenge expert opinions or resolve differences of judgment concerning the ethical, moral and social consequences of assisted suicide.
2. The factual foundations of expert views were either already clear or could be clarified through written material and submissions. If the case proceeded, the parties could identify specific factual matters requiring clarification. That process was not to become an adversarial challenge to expert opinion, except where an opinion was alleged to be irrational or perverse and short reasons were given.
3. The Court of Appeal’s reasoning in R (Conway) v Secretary of State for Justice and Others was directly applicable. The evidence overlapped substantially, and the difference between a person within six months of death and the present claimant was immaterial to the evidential question. Although the Court of Appeal’s observations were strictly obiter, their direct, general and unqualified character meant that this court was bound to dismiss the claimant’s arguments on the preliminary issue.
4. The Canadian decision in Carter v AG of Canada was instructive but not determinative. The Canadian constitutional setting gave the courts a different institutional role, and the scale of that proceeding did not provide a reliable procedural model for this case.
5. The applications for permission to appeal and certification for a leapfrog appeal were premature. They concerned interlocutory matters before determination of the preliminary issue and the substantive judicial review. If the claimant continued the judicial review, any appeal application could be addressed thereafter.

The Divisional Court had ordered the trial of a preliminary issue: [2017] EWHC 3181 (Admin). The present court determined that issue after considering the subsequent Court of Appeal judgment in [2018] EWCA Civ 1431.