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Supreme Court upholds prohibition on assisted suicide

Judges in England have the constitutional authority to declare law incompatible with EU human rights legislation but parliament should be given the opportunity of review first

26 June 2014

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Judges in England have the constitutional authority to declare law incompatible with EU human rights legislation but parliament should be given the opportunity of review first

The Supreme Court, by a majority of seven to two, has dismissed appeals brought by three appellants over whether the present law banning assisted suicide in England and Wales infringes the European Convention on Human Rights, and, furthermore, whether the code published by the Director of Public Prosecutions (DPP), relating to prosecutions of those who are alleged to have assisted suicide, is lawful.

In what has been described as a landmark ruling, a five to four majority of the Justices found that the Supreme Court had jurisdiction in determining whether the ban on assisted suicide pursuant to section 2 of the Suicide Act 1961, disproportionately interfered with the appellants' article 8 rights.

The majority also found that it was open to the court to make a declaration of incompatibility under section 4 of the Human rights Act 1998. The Justices warned parliament that there was a real prospect that a further and successful application for a declaration of incompatibility may be made in the future if parliament does not reconsider the issue of assisted dying.

The legal challenges were brought by Paul Lamb, who suffered catastrophic injuries after a car accident and now requires 24-hour care, Jane Nicklinson, the widow of the right-to-die campaigner Tony Nicklinson, and a claimant known only as "Martin".

On the first appeal Lord Neuberger commented that the interference with Nicklinson's and Lamb's article 8 rights was "grave" and that the arguments in favour of the current law were by no means "overwhelming".

Deputy president of the Supreme Court, Lady Hale along with Lord Kerr, held that they would have granted a declaration of incompatibility in the proceedings against the legislation.

In the second appeal, the lawyers for Martin said the DPP's guidelines should be rewritten because it interferes with his article 8 rights and makes the consequences for a person encouraging or assisting his suicide "insufficiently foreseeable". This was after the Master of the Rolls Lord Dyson and Lord Justice Elias, in the Court of Appeal, agree that it was unclear whether doctors and others would be brought before the courts for assisting a suicide and said it should be "spelt out unambiguously" by the DPP.

The court held that it was one thing for it to decide that the DPP must publish a policy, and quite another for it to dictate what should be in that policy. Lord Neuberger said: "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."

The court unanimously allowed the appeal brought by the DPP, and dismissed the cross-appeal brought by Martin.

However, Lord Neuberger, supported by Lord Mance, did suggest that a system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary and informed wish to die would "provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP's office inquiring, after the event".

Saimo Chahal QC, a partner at Bindmans, who represented Nicklinson and Lamb, said that they would consider taking an appeal to the European Court of Human Rights in Strasbourg although a decision has yet to be taken.

'Sending a message'

Saimo Chahal QC is a partner at Bindmans who represented Jane Nicklinson and Paul Lamb

"The ruling is not exactly what we had hoped for. We had hoped for a statement of incomparability on the grounds that the ban on assisted suicide is too broad and disproportionate on the article 8 rights of Paul Lamb. Although, technically the appeal has been dismissed there are several positives to take from it.

"What we have got is a majority of the Lord Justices sending a message to parliament that they must review the ban on assisted suicide particularly in regards to people like Paul Lamb and that category of people that have suffered a catastrophic injury and who have made an informed decision to end their life but cannot do so without assistance.

"The court has sent a very clear message to parliament saying review the law otherwise we will have to reconsider it when another case comes before us. The majority of five in favour and four against said that they and the courts did have jurisdiction to hear the issues and to consider the ban on assisted suicide and decide whether it was proportionate. That overturns the decisions of the divisional court and the Court of Appeal which said that the courts had no jurisdiction whatsoever and it was all entirely a matter for parliament. On that point we have won. It reinforces the notion that where the Human Rights Act is involved the courts must act if the law is unfair, unjust or disproportionate.

"What is disappointing is that of the five majority justices who said they did have jurisdiction also side that parliament should first be given the opportunity to review the law. Two justices, Lady Justice Hale and Lord Justice Kerr both said that if it were left to them they would have made a finding that the law was incompatible with the Human Rights Act.

"This is a landmark judgment. The majority have said that while the have jurisdiction they will throw it back to parliament and if parliament doesn't carry out a review or ignores it then they would consider making a declaration if another case comes before them. In our view this judgment sets the stage if parliament doesn't deal with the issue adequately."


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