The Queen (on the application of T) v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Phillips |
| Judgment Date | 09 October 2018 |
| Neutral Citation | [2018] EWHC 2615 (Admin) |
| Date | 09 October 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1319/2017 |
[2018] EWHC 2615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Phillips
Case No: CO/1319/2017
Paul Bowen QC 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 dates: 7 and 8 March 2018
Judgment Approved
Introduction
The Claimant suffers from a rare and terrible neurological disorder, known as Multiple Systems Atrophy. He is 55 years of age, and is bedbound with poor mobility. He lives in a nursing home and requires 24-hour care. His condition is incurable. He has a long-standing desire to die, at a moment of his choosing, but he is not likely to die from his condition in the near future. As he expresses it in his first witness statement:
“14. I have seen a number of other specialists but I do not wish to attend any more appointments at the National Hospital for Neurology & Neurosurgery. They can do small things to alleviate my symptoms but that is not what I want or need. They have been wonderful and I have no complaints about my care. I just cannot tolerate being alive in this condition, with years of pain and suffering ahead and no cure that will put me back in the situation I was in before about 2007. I cannot turn the clock back and the way forward is deterioration and loss of autonomy and dignity.
15. I wish to end my life as I am entitled to do under the law. I tried in March 2015 and failed. It is not an easy thing to do when you have the disabilities I have. I need help to end my life safely and painlessly and with dignity.”
No one could read the material in this case without feeling the most profound sympathy for the Claimant. He is clearly an intelligent and sensitive man suffering deeply from his condition, and from his sense of being trapped. The legal, ethical, political and constitutional questions arising from the issue of assisted suicide, carrying implications for many vulnerable people, must inevitably add to his feelings of entrapment.
The Claimant brings his application for judicial review, seeking a declaration under s.4(2) of the Human Rights Act 1998 that s.2(1) of the Suicide Act 1961, which maintained the previous position at common law and makes assisting suicide a criminal offence, is incompatible with the rights of the Claimant under Article 8 of the European Convention of Human Rights, as a matter of domestic law. The last phrase is important. The European Court of Human Rights has held, in Pretty v United Kingdom (2003) 35 EHRR 1 and Nicklinson v United Kingdom (2015) 61 EHHR SE7, that the blanket ban on assisted suicide in English law falls within the wide margin of appreciation granted to Member States on this topic. Thus, the matter must be decided as a matter of domestic law.
Following a hearing in November 2017, the Divisional Court (Sir Brian Leveson PQBD and Mrs Justice Whipple DBE) ordered the trial of a preliminary issue: T v Secretary of State for Justice [2017] EWHC 3181 (Admin). The issue was framed in a subsequent order of the Court of 20 December 2017 as follows:
“Is it appropriate and necessary in this case for the Court to hear first-hand evidence with cross-examination to seek to determine the mixed ethical, moral and social policy issues that underlie whether Parliament's prohibition on assisted suicide in s.2(1) Suicide Act 1961 is a justified interference with the Claimant's rights in this case?”
The terms of the preliminary issue had not been agreed between the parties, and the issue as ordered was the outcome of the Court's consideration of competing submissions.
The matter came before us on 7 and 8 March 2018. However, the Defendant made submissions, which we accepted, that we should withhold our ruling on the issue until (1) the Court of Appeal had given their judgment in the case of R (Conway) v Secretary of State for Justice and Others [2018] EWCA Civ 1431, and (2) the parties had made submissions as to the implications and consequences of that judgment for this case. The parties did so by 27 July 2018.
On 16 August 2018, this Court was informed that Mr Conway had issued an application for permission to appeal to the Supreme Court.
In his written submissions of 13 July 2018, the Claimant:
“4. …does not seek to advance further argument on the Preliminary Issue in light of the judgment in Conway. Rather, the Claimant accepts that the judgment of the Court of Appeal in Conway, albeit strictly obiter on this issue, is such that the Divisional Court is bound to find against the Claimant on the Preliminary Issue. In light of this ruling, however, the Claimant seeks:
4.1. A judgment and order of the Divisional Court dismissing the Claimant's application on the Preliminary Issue and his application to cross-examine on the basis of the arguments already made and in the light of the judgment in Conway.
4.2. The certification of the Court for a ‘leapfrog’ appeal on the Preliminary Issue to the Supreme Court under either s 1 Administration of Justice Act 1960 (‘the 1960 Act’) (if this is a ‘criminal cause or matter’) or s 12 of the Administration of Justice Act 1969 (‘the 1969 Act’) (if these are ‘civil proceedings’).
4.3. Permission to appeal under s 1 of the 1960 Act (if this is a ‘criminal cause or matter’).”
In the light of that concession (which I regard as inevitable), I will give my reasons concisely.
The Question of Oral Evidence
The Claimant's submissions on the preliminary issue are based to a significant degree on the remarks of Lord Mance in R (Nicklinson) v Ministry of Justice [2015] AC 657. In that case, four members of the Court (Lords Sumption, Clarke, Reed and Hughes) considered it would be “institutionally inappropriate, or only institutionally appropriate if Parliament refuses to address the issue, for a domestic court to consider whether Section 2 [of the Suicide Act 1961] infringes the Convention” [148]. By contrast, two justices (Baroness Hale DPSC and Lord Kerr) considered it would be “institutionally appropriate” for the Court to determine the issue then. Lord Neuberger PSC and Lord Mance were in agreement that it was not appropriate for the Court to determine the issue at that time, but disagreed with the broader conclusion: [148, 150].
It was against that background that Lord Mance said:
“174. I would accept that it is in principle open to claimants in the position of the appellants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence, and, further, that this would not involve inviting the Supreme Court to depart precedentially from Purdy. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being re-litigated in this way, although courts should no doubt discourage such re-litigation in the absence of fresh and significantly different evidence.
175. However, examination of the course of the present case raises in my view serious questions about its suitability for any such exercise. At no stage does this litigation appear to have been approached on the basis that the court should hear primary evidence about the issues. There has been nothing like the wide-ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence which appears to have informed the United States Supreme Court's judgments in Washington v Glucksberg. Much of the material put before the Supreme Court on the present appeal has been second hand, adduced in other litigation or by other inquiries. Thus Toulson LJ, when referring to the January 2012 report of the Commission on Assisted Dying chaired by Lord Falconer, said (para 24):
“We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi-official status”.
The report in fact records that “some prominent individuals and organisations that are fundamentally opposed to any form of assisted dying being legally permitted in the UK” refused to participate in giving evidence (p.39). Toulson LJ also records (para 25) that after judgment was given at first instance by Smith J in Carter v Canada [2012] BCSC 886, counsel for Mr Nicklinson applied for leave to introduce the evidence in that case into the present case, recognising “that, if it were admitted, there would have to be a further hearing in order to...
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