R (Nicklinson) v Ministry of Justice PDF

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R (Nicklinson) v Ministry of Justice...

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R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, Court of Appeal; [2014] UKSC 38, [2015] AC 657, Supreme Court In the earlier case of R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345, the House of Lords held that the Director of Public Prosecutions was to publish guidance as to the factors which would be taken into account as part of a decision to prosecute (or not to prosecute) a person charged with assisting the suicide of another, made pursuant to s. 2 of the Suicide Act 1961 (as amended). A range of further challenges to the law on assisted suicide were brought by appellants who wished to end their own lives, but were physically unable to do so alone. One challenge concerned the precision with which the Director of Public Prosecutions had formulated the prosecution guidance he was obliged to publish following the decision in Purdy. It was argued that the published policy was an unjustified interference with the appellants right to respect for private and family life, protected by Art. 8 of the European Convention on Human Rights, because it was too uncertain to be ‘in accordance with the law’ as required by Art. 8(2), in relation to the guidance applicable to healthcare professionals, as opposed to the friends or family of a person who wishes to end their life. A majority of the Court of Appeal upheld this challenge. LORD DYSON, M.R. AND ELIAS LJ: … [138] Despite the wording of the order made in Purdy, we consider that it is not sufficient for the Policy merely to list the factors that the DPP will take into account in deciding whether to consent to a prosecution under section 2(1). A list of factors which contains no clue as to how the discretion to grant or withhold consent will be exercised is not sufficient to meet the requirements of Article 8(2). Lord Hope clearly recognised this at para 41 of his opinion in Purdy. He said that the requirement of foreseeability will be satisfied where the person concerned “is able to foresee … the consequences which a given action may entail” (emphasis added). This formulation was derived from the Sunday Times case at para 49. If a list of relevant factors does not enable the person concerned to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of his action, then the Article 8(2) requirement is not satisfied…. [140] In our judgment, the Policy is in certain respects not sufficiently clear to satisfy the requirements of Article 8(2) in relation to healthcare professionals…. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care. In short, we accept the submission of Mr Havers that the Policy does not provide medical doctors and other professionals with the kind of steer… that it provides to relatives and close friends acting out of compassion… On appeal to the Supreme Court: LORD NEUBERGER: [141] Accordingly, we are here concerned with a very unusual crime which is the subject of a specific policy. However, that does not undermine the force of the constitutional argument that it is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPP’s policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently. While many may regret the fact that the DPP’s policy is not clearer than it is in relation to assistance given by

people who are neither family members nor close friends of the victim, and while many may believe that the policy should be the same for some categories of people who are not family members or close friends as for those who are, it would not be right for a court in effect to dictate to the DPP what her policy should be. LORD SUMPTON: [249] Ultimately, the question of legal principle posed by the reasoning of the House of Lords in Purdy is whether the uncertainty about the position of professionals allows the arbitrary and inconsistent exercise of executive discretion. In my opinion it does not. Any lack of clarity or precision does not arise from the terms of the Director’s published policy. It arises from the discretionary character of the Director’s decision, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case. All of these are proper and constitutionally necessary features of the system of prosecutorial discretion. The terms of the published policy reflect them. The document sets out the principal relevant factors for and against. It treats the professional character of an assister’s involvement as a factor tending in favour of prosecution. It is at least as clear as any sentencing guidelines for this offence could be. Appeal allowed on this point. NOTE: The competing approaches of the majority in the Court of Appeal and the Supreme Court in Nicklinson shows the difficulty that may arise when courts seek to determine whether there is sufficient certainty for the rule of law to be satisfied. This is especially the case when in relation to rules intended to structure the discretion lawfully to be exercised by public officials. Indeed, John Finnis has argued that the original decision in Purdy, the implementation of which was at issue in Nicklinson, was itself damaging to the rule of law (J. Finnis, ‘Invoking the Principle of Legality against the Rule of Law’ [2010] New Zealand Law Review 601–16, 613): … it undermines the legal certainty that Parliament has repeatedly insisted upon, and the ECHR has approved: the certainty – sought for the sake of protecting the lives of the vulnerable – that any assisting or encouraging of suicide will be an offence, liable to prosecution. Even the more uncontroversial elements of the rule of law may therefore be the subject of significant disagreement when applied in a particular practical context....