Lecture 5 – R (on the application of Nicklinson) v Ministry of Justice PDF

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Lecture 5 R (on the application of Nicklinson) v Ministry of Justice Key components -

Procedural history Facts Issues Law Reasoning/analysis Decisions: outcome

2014 Supreme Court appeal •

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R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 R (on the application of Nicklinson and another) v Ministry of Justice [2015]AC 657 On appeal from [2013] EWCA Civ 961

Who were the judges considering the case? •

Justices • Lord Neuberger (President), • Lady Hale (Deputy President), • Lord Mance, • Lord Kerr, • Lord Clarke, • Lord Wilson, • Lord Sumption, • Lord Reed • Lord Hughes

Decision on each appeal • • •

Who delivered judgements? How did the court divide? Was there a dissenting opinion?

Context • • • •

Assisted suicide (victim consenting to the killing) Tragic personal circumstances Complex ethical decisions Important public policy issues

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Clarity on the law in this area

Questions to be considered by the Sup Ct 1. Is the law on assisted suicide in England and Wales compatible with the European Convention of Human Rights? 2. Whether the Code published by the DPP relating to the prosecutions of those who are alleged to have assisted is lawful?

Background • Suicide Act 1961 • Until 1961, suicide and assisted suicide was a crime in England and wales • Application by Mr Nicklinson to the High Court (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under article 8 of the Convention (“Article 8”). Both refused Facts Became paralysed, wanted to end his life, wanted someone to inject him with a lethal drug, but was also open to killing himself through a machine. Applied to high court for a declaration providing it would be lawful for a doctor to end his life. This was refused. Refused to eat/drink – died of phenomia

Similar case • Mr Nicklinson’s death • Appeal to Court of Appeal • Wife added as a party • Mr Lamb added as claimant: Court of Appeal • Applied for same relief as in the original case • Appeal dismissed by Court of Appeal • Second appeal (Martin) • Mrs Nicklinson and Mr Lamb appealed to the Supreme Court (1 st appeal) and DPP appealed Martin cross-appealed in the second appeal. Paralysed due to bad car accident

Other relevant cases/ policy • • • • •

R (Pretty) v DPP [2002] 1 AC 800 Pretty v United Kingdom (2002) 35 EHRR 1 R (Purdy) v DPP [2009] UKHL 45 2010: DPP published prosecution policy on encouraging or assisting suicide in England and Wales “to clarify what his position is as to the factors that he regards as relevant for and against prosecution”

Reasoning/ analysis for the judgement • • • • •

Unanimous: whether the current law incompatible with Article 8 is a domestic question for the UK to decide Unanimous that Section 2 engages Article 8 5: Court competent to make a declaration of incompatibility 3: But not before Parliament has opportunity to consider judgement Also issue of different arguments put at different stages • Necessity as a defence • Machine • Evidence and lower courts having had appropriate opportunity

Lady Hale and Lord Kerr • •

Would have issued a declaration of incompatibility Article 8 confers a right on an individual to decide by what means and at what point his/her life will end, provided capable and freely make the decision

Four justices •

Compatibility with Article 8 should be considered by Parliament rather than the courts

DPP’s appeal (second appeal) • • • •

Unanimously allowed Distinguished between court deciding that DPP must publish a policy and dictating what should be in that policy The need for decisions by DPP to reflect the particular circumstances of the case Martin’s cross appeal: did not need to be considered because of decision on second appeal

Summarising of the existing law • • •

Lord Sumption’s summary of how the law allows for the alleviation of suffering in the terminally ill Particularly as appears to be widely misunderstood Endorsement by other some justices

What has happened since this case? • • • • •

Consultations Discussions in Parliament/ Assisted dying Bills Changes to law / policy? Subsequent court cases in England What is happening elsewhere?

Legal Systems • • • • •

Process of appeal to the Supreme court What is the make up of the current Supreme Court: President, Deputy President, gender balance etc. ? Role and duties of Director of Public Prosecutions, including Prosecution policy Use of judgements Statements of the law e.g. Lord Sumption summary of the current law Balance between courts and Parliament...