‘Thou Shalt Not Kill; But Needst Not Strive Officiously to Keep Alive’: Further Clarification of the Law regarding Mercy Killing, Euthanasia and Assisted Suicide
| Published date | 01 December 2013 |
| Author | Adam Jackson |
| DOI | 10.1350/1740-5580-77.6.468 |
| Date | 01 December 2013 |
| Subject Matter | Court of Appeal |
unclear why a woman who did not ask her partner about his HIV status
on the basis that she, reasonably, expected such a crucial piece of
information to be volunteered to her, should be deprived of protection
under the Act. Secondly, the court specifically states that even some
active deceptions, such as to wealth, do not vitiate consent. What about
active deception as to marital status or religion? Depending on the
complainant, these may be absolutely vital to his or her consent and not
merely of passing interest.
It will be a novel approach if liability for rape is to depend on the
character of the complainant and how much store she set on, for
instance, the religion of her sexual partner. Yet the Court of Appeal has
opened the door to such an approach by saying that deception as to
gender will not always vitiate consent but may do so ‘depending on the
circumstances’, presumably meaning the characteristics of the
complainant.
The law will remain in an uncertain and unsatisfactory state if future
Courts of Appeal deal with questions under s. 74 on the basis of
‘common sense’ as suggested by the former Lord Chief Justice in R (F)
and adopted in the present case.
Gavin A. Doig
‘Thou Shalt Not Kill; But Needst Not Strive Officiously to
Keep Alive’: Further Clarification of the Law regarding
Mercy Killing, Euthanasia and Assisted Suicide
R (on the application of Nicklinson) vMinistry of Justice [2013] EWCA
Civ 961
Keywords Mercy killing; Euthanasia; Assisted suicide; Necessity; ECHR
Article 8; Autonomy
Opening the judgment of the Court of Appeal Lord Dyson MR perspicu-
ously illustrated the issues at the heart of the present case:
These appeals concern individuals who suffer from permanent and cata-
strophic physical disabilities. They are of sound mind and acutely conscious
of their predicament. They do not want to suffer a painful and undignified
process of dying. They wish to die at a time of their choosing. However they
are not physically capable of ending their own lives unaided. (at [1])
The conjoined appeals in this case concerned ‘submissions to the effect
that the right to die at the time of one’s choosing engages fundamental
common law rights as well as the right to private life protected by Article
8 of the [European] Convention [on Human Rights (ECHR)]’ (at [16]).
The circumstances of the three appellants are outlined below.
Tony Nicklinson (TN) suffered a stroke in 2005 which subsequently
caused ‘locked-in’ syndrome, leaving him almost completely paralysed
and totally dependent on others for his care. TN died shortly after the
The Journal of Criminal Law
468
To continue reading
Request your trial