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Assisted suicide guidelines must be amended, appeal judges say

LCJ gives dissenting judgment after Master of Rolls and Elias LJ back 'Martin'

31 July 2013

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LCJ gives dissenting judgment after Master of Rolls and Elias LJ back 'Martin'

The DPP's assisted suicide guidelines do not provide "sufficient clarity" on whether doctors and other healthcare professionals can help people to end their lives, the Court of Appeal has ruled.

In his last civil judgment before he retires, the Lord Chief Justice, Lord Judge, delivered a dissenting ruling in the case of a man referred to as 'Martin', after the Master of the Rolls, Lord Dyson, and Elias LJ backed the case for change. As expected, the court rejected appeals by the wife of right-to-die campaigner Tony Nicklinson and Paul Lamb, who can only move his right hand. They argued that the existing law on assisted suicide breached their human rights. Their solicitor, Saimo Chahal, said her clients would be seeking permission to appeal to the Supreme Court.

Giving the majority ruling in the case brought by Martin, the Master of the Rolls and Elias LJ said assisting a person to commit suicide is a criminal offence which carries a maximum sentence of 14 years' imprisonment.

"The graver the potential consequences, the more important it is that the consequences are foreseeable," the judges said.

"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. It is not surprising that they are reluctant to assist victims to commit suicide."

Delivering judgment in R (on the application of AM) v DPP [2013] EWCA Civ 961, the Master of the Rolls and Elias LJ accepted it would be "impractical if not impossible" for the DPP to lay down guidelines which would embrace every doctor or other professional.

But it was not impossible or impractical for the DPP to amend the policy so as to make its application "more foreseeable than it currently is".

They rejected an argument that the DPP would be crossing a "constitutional boundary" by making further changes to the guidelines, and said he had made the position for partners, friends and relatives sufficiently clear without crossing any boundaries.

They rejected the appeals by Mrs Nicklinson and Paul Lamb, but upheld Martin's complaint that the DPP's guidelines lacked "sufficient clarity" and invited the parties to agree the terms of a declaration.

Richard Stein, partner at Leigh Day, who acted for Martin, said the ruling was a "crucial victory" for his client and others in the same position.

"This case has been all about giving people the choice to decide when and how they can end their own life," Stein said.

"This is a right all able-bodied people have but is denied to Martin because of his condition. This is a hugely significant moment in allowing people control."

However, the LCJ, who issued a dissenting judgment in the Martin case, said: "With great respect, we cannot keep ordering and re-ordering the DPP to issue fresh guidelines to cover each new situation.

"Prosecutorial policy decisions must remain fact specific and certainty about the policy which can be no more than indicative of the eventual decision if a crime is committed is not to be equated with the certainty required of provisions which create or identify criminal offences."

Lord Judge went on: "It is virtually inevitable in a situation like this that some of the very many factors identified in the policy as tending to favour prosecution may arise, but others, favourable to a non-prosecution decision would also arise.

"In my judgment a one-by-one tick box approach to these factors would not only be inappropriate, but unwise."

Mrs Nicklinson appealed directly to the Court of Appeal after the High Court refused permission last autumn. Martin was granted leave to appeal but was told by the judges that they did not believe his case had "any real prospect of success".

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