R Philippe George Newby v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mrs Justice May DBE |
| Judgment Date | 19 November 2019 |
| Neutral Citation | [2019] EWHC 3118 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2726/2019 |
| Date | 19 November 2019 |
[2019] EWHC 3118 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mrs Justice May
Case No: CO/2726/2019
Paul Bowen QC, Adam Wagner and Jennifer MacLeod (instructed by Bindmans LLP) for the Claimant
James Strachan QC and Benjamin Tankel (instructed by The Government Legal Department) for the Defendant
Hearing date: 22 October 2019
Approved Judgment
Lord Justice Irwin and
Introduction
This is a judgment of the court, to which we have both contributed.
This is a renewed application for Judicial Review. Permission was initially refused by Whipple J on 27 September 2019. The claimant ultimately seeks a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 (“ HRA”), stating that the current law on assisted suicide contained in section 2(1) Suicide Act 1961 (“the 1961 Act”), as amended by the Coroners' and Justice Act 2009, is incompatible with Articles 2 and 8 of the European Convention on Human Rights (“ECHR”).
It is the Claimant's substantive case that section 2(1) of the 1961 Act breaches his rights under the ECHR as it will operate to prevent him from obtaining assistance to end his life, even where proper safeguards exist. The fact that the prohibition in section 2(1) is a blanket prohibition, admitting of no exceptions, renders the infringement of ECHR rights disproportionate. By way of illustrating this disproportionality, the Claimant has submitted a ‘scheme’ containing several criteria and safeguards by which, it is contended, any legitimate aims of section 2(1) can be preserved without disproportionate infringement of his rights.
The specific point which Mr Newby seeks to have determined as a preliminary issue is whether the court should hear evidence of what the Claimant terms “legislative facts”. This term is deployed as short-hand for ‘the mixed ethical, moral and social policy issues’ which have a bearing on the assessment of the proportionality of interference with the Article 8 rights. That issue could only become justiciable were the court to grant permission for judicial review and direct a hearing of the preliminary issue.
Factual Background
The Claimant, Mr Philippe Newby, is 49 years old. In May 2014, he was diagnosed with motor neurone disease (“MND”), an incurable, progressive and life-shortening condition. His statement, provided on 6 June 2019, outlines his then-current situation, noting the relentless progression of the disease, and the limitations imposed upon his life. At the time of that statement, Mr Newby noted that he was no longer able, amongst other things, to dress or undress himself, to wash or conduct personal hygiene or care, to scratch an itch, hold a pen, type, hold, lift open, or pull an object with a hand, use a knife, or make or open food or liquid refreshments for himself. Further, he can no longer walk, move beyond two rooms in his home without assistance, leave his home or travel without assistance. He could not use a normal toilet (including normal disabled toilets), drive, or turn over in bed. Each month, the array of things that he can do diminishes.
Though generally stable, his emotional state varies a little. In the winter of 2018, driven by the prospect of being trapped in his body without the agency to bring his life to an end, he considered taking his own life. In January 2019 he, with his wife Charlotte, resolved to fight through the courts for the right to end his life at a time when he believed he ‘had run out of road – and not before’.
It is impossible not to have very great sympathy for the situation in which Mr Newby finds himself. His clear and dignified statement compels admiration and respect.
Under these most arduous and distressing circumstances, the claimant brings his application for judicial review.
Legal Background
The issue of compatibility of section 2(1) of the 1961 Act with Articles 2 and 8 ECHR has now received significant judicial attention, most recently in R (Nicklinson) v Ministry of Justice [2014] UKSC 38, R (Conway) v Secretary of State for Justice [2018] EWCA 143, and R (T) v. Secretary of State for Justice [2018] EWHC 2615 (Admin). Before turning to these cases, the relevant legal framework in which these judgments were given requires exposition.
Section 2(1) of the 1961 Act provides that:
“A person (“D”) commits an offence if—
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D's act was intended to encourage or assist suicide or an attempt at suicide.”
Article 8 ECHR provides that:
“Article 8: Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of … crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The potential for conflict between these provisions arises as a result of the breadth given to Article 8. It is now well established in the jurisprudence of the European Court of Human Rights (“ECtHR”), that the right of an individual to determine how and when to end their life falls within the ambit of Article 8. To this effect, in the decisions of Haas v Switzerland (2011) 53 EHRR 33, Koch v Germany (2012) 56 EHRR 6, Gross v Switzerland (2013) 58 EHRR 197, the ECtHR has found that a blanket ban on assisted suicide engages Article 8(1) ECHR. Such interference with an individual's Article 8 right, however, has been deemed both justifiable and proportionate under Article 8(2) ECHR: Pretty v United Kingdom (2003) 35 EHRR 1 at [74]. As the ECtHR further clarified in Nicklinson v United Kingdom (2015) EHRR SE7, such a decision is to be made by Member States, falling as it does within the broad margin of appreciation.
In the domestic setting, the issue of compatibility received the attention of the Supreme Court in Nicklinson, where two of the claimants suffered from “locked-in syndrome”. This condition prevented them from carrying out any act of suicide, even with assistance from others, though locked-in syndrome is not in and of itself a terminal condition. It is upon this case, and a rigorous examination of the individual judgments in this case, that the Claimant founds much of his argument.
The Supreme Court in Nicklinson ultimately declined to issue a declaration of incompatibility. Of great import to the Claimant's argument are, however, the divided views between the justices on two key questions. The first was whether a determination would be institutionally appropriate, given that assisted dying is a sensitive issue which raises a plethora of moral and ethical issues. The second was whether a declaration of incompatibility would at that time be appropriate given the then on-going debate on the issue in the House of Lords, arising from Lord Falconer of Thoroton's Assisted Dying Bill 2014.
The differing views in Nicklinson were analysed by the Divisional Court in ( Conway [2017] EWHC 640 (Admin)), in passages quoted with approval in the Court of Appeal decision in that case at [34].
In Nicklinson, Lord Sumption, Lord Hughes, and Lord Reed found that it would be institutionally inappropriate for the Court to issue a declaration of incompatibility. Their Lordships formed the determinative majority deciding against the grant of a declaration of incompatibility, together with Lord Neuberger PSC, Lord Mance, and Lord Wilson who, for their part, considered that, although institutionally appropriate, making such a declaration was inappropriate at that time. Of the nine justices, only Lady Hale DPSC and Lord Kerr concluded that making a declaration of incompatibility was both institutionally appropriate and appropriate at that time.
In Conway the claimant was diagnosed with motor neurone disease and had, at the time of the Court of Appeal decision, a prognosis of six months' or less to live. That claimant too sought a declaration of incompatibility on the basis that the blanket prohibition of assisted suicide in section 2(1) of the 1961 Act was an impermissible interference with his Article 8 ECHR right to respect for private and family life.
The Court of Appeal in Conway considered that it was not bound by the earlier decision of Nicklinson (see [134]), on the basis that Nicklinson was concerned with individuals subject to long-term suffering, but not those who were terminally ill. The court found that the prohibition in section 2(1) of the 1961 Act was proportionate, and concluded by rejecting the claim and upholding the reasoning of the Divisional Court, expressed as follows:
“114. In our judgment, the prohibition in section 2 achieves a fair balance between the interests of the wider community and the interests of people in the position of Mr Conway. The issues here are similar to those which arise in relation to the question of the necessity of the interference with Mr Conway's rights under Article 8(1). In particular, the margin of appreciation and the discretionary area of judgment for Parliament have similar relevance in the context of this part of the analysis. Parliament is entitled to maintain section 2 in place with full force and effect in order to promote the legitimate aims identified above in the interests of the general community, even though that has an impact in terms of restricting the options available to Mr Conway about the timing and manner of his death.”
Finally, of present...
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