R (on the application of Nicklinson & Anor) [2014] UKSC 38

Three severely disabled men sought relief from laws criminalising assisted suicide. They argued section 2 of the Suicide Act 1961 breached article 8 ECHR, and that DPP prosecution guidelines lacked clarity. The Supreme Court dismissed the appeals but indicated Parliament should reconsider the issue.

Facts

The appeals concerned three men—Tony Nicklinson, Paul Lamb and ‘Martin’—each suffering catastrophic physical incapacity following stroke or injury. All wished to end their lives but were physically unable to do so without assistance. Mr Nicklinson, completely paralysed save for movement of his head and eyes following a 2005 stroke, sought a declaration that it would be lawful for a doctor to assist him in dying, or alternatively a declaration that section 2 of the Suicide Act 1961 was incompatible with article 8 ECHR. Following refusal of relief by the High Court, he died of pneumonia after refusing nutrition. His widow and Mr Lamb (paralysed since a 1990 car crash) pursued the appeal. Martin, who suffered a brainstem stroke in 2008, sought clarification of the DPP’s 2010 Policy regarding prosecution of those (particularly healthcare professionals) who might assist him to travel to Dignitas in Switzerland.

Issues

The first appeal raised whether: (a) section 2 imposed an impermissible ‘blanket ban’ outside the UK’s margin of appreciation; (b) UK courts had constitutional competence to determine compatibility where Strasbourg had left the matter within the margin of appreciation; (c) it was institutionally appropriate for the court to consider the issue, as opposed to leaving it to Parliament; (d) section 2 in fact infringed article 8; and (e) what order should be made. The second appeal raised whether the DPP’s 2010 Policy satisfied article 8’s foreseeability requirements, and whether prosecution of those assisting Martin would be a disproportionate interference with his article 8 rights.

Arguments

The appellants accepted section 2’s legislative aim of protecting the weak and vulnerable was legitimate, but contended the absolute terms were disproportionate and failed to strike a fair balance against the grave interference with article 8 rights of those needing assistance to die. They relied on the Falconer Commission report and Canadian Carter v Canada decision. The Secretary of State argued that the issue involved difficult, controversial moral and policy questions properly reserved to Parliament, which had recently reaffirmed section 2 in the 2009 Act, and that there were genuine risks to vulnerable persons.

Judgment

The Supreme Court dismissed the first appeal (with Lady Hale and Lord Kerr dissenting), allowed the DPP’s appeal and dismissed Martin’s cross-appeal. All nine Justices held section 2 was not a ‘blanket ban’ outside the UK’s margin of appreciation under Strasbourg jurisprudence (Pretty v UK; Haas; Koch; Gross). A majority (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson) held the court had constitutional competence to determine whether section 2 infringed article 8 domestically, following Re G (Adoption: Unmarried Couple). However, Lord Neuberger, Lord Mance and Lord Wilson concluded it would be institutionally inappropriate to make a declaration of incompatibility at this juncture, given that Parliament should first be afforded the opportunity to consider amending section 2 (particularly via the pending Assisted Dying Bill). Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke held the question was inherently legislative and a matter for Parliament. Lady Hale and Lord Kerr would have granted a declaration of incompatibility, considering the absolute prohibition disproportionate to its legitimate aim of protecting the vulnerable, since a narrower scheme (such as one requiring prior High Court authorisation) could accommodate cases like the appellants’ without endangering others.

On the second appeal, the Court held the DPP’s 2010 Policy met the requirements of foreseeability established in Purdy. Lord Sumption explained that prosecutorial guidance must be confined within the bounds of practicality and the rule of law; it cannot become a ‘charter of exemptions’. However, Lord Neuberger noted that as counsel for the DPP had accepted Lord Judge CJ’s interpretation of paragraph 43(14) (that it did not target healthcare professionals brought in from outside without prior influence), the DPP should review and clarify the Policy to reflect this.

Implications

The decision establishes that, where the Strasbourg court has held an issue to fall within the margin of appreciation, UK courts retain competence under the Human Rights Act 1998 to determine whether domestic law is compatible with Convention rights. The judgment signals to Parliament that the law on assisted suicide requires re-examination: a majority indicated that, if Parliament fails to address the matter satisfactorily, a future application for a declaration of incompatibility may succeed. Lord Neuberger and Lord Wilson outlined a possible scheme whereby a High Court judge would determine in advance whether an applicant’s wish to die was voluntary, clear, settled and informed. The case clarifies the constitutional limits of prosecutorial discretion: the DPP cannot create advance exemptions from criminal law or effectively dispense with statutory prohibitions. For practitioners, the judgment also reaffirms important points: doctors may give objective clinical advice about end-of-life options, and palliative treatment that incidentally shortens life remains lawful. The decision is significant because it represents a judicial invitation to Parliament to reconsider a sensitive moral and policy issue, whilst respecting the limits of judicial competence in matters of profound ethical controversy.

Verdict: The first appeal by Mrs Nicklinson and Mr Lamb was dismissed. The Director of Public Prosecutions’ appeal in the second appeal was allowed, and Martin’s cross-appeal was dismissed. No declaration of incompatibility was made in respect of section 2 of the Suicide Act 1961, but the DPP was expected to review and clarify her 2010 Policy.

Source: R (Nicklinson) v Ministry of Justice [2014] UKSC 38