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Nicklinson and Another, Regina (on The Application of); SC

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Nicklinson and Another, Regina (on The Application of); SC

Postby dls » Sat Aug 15, 2015 5:42 am

Nicklinson and Another, Regina (on The Application of); SC 25 Jun 2014
References: 36 BHRC 465, [2015] 1 AC 657, 139 BMLR 1, [2014] WLR(D) 298, [2014] 3 FCR 1, [2014] HRLR 17, [2014] 3 WLR 200, [2014] 3 All ER 843, (2014) 139 BMLR 1, UKSC 2013/0235, [2014] UKSC 38, [2014] 3 WLR 200
Links: WLRD, SC, SC Summary, Bailii Summary, Bailii
Coram: Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes
The court was asked: 'whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to prosecutions of those who are alleged to have assisted a suicide is lawful. '
Held: The first appeal (of Nicklinson) failed (Majority seven to to two) The question of whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdom's margin of appreciation, and is therefore a question for the United Kingdom to decide, and the court did have the constitutional authority to make a declaration of incompatibility of section 2 of the 1961 Act with those article 8 rights. However the issuse were inherently ones far better to be decided by Parliament, and Parliaments assessment shoul be respected.
In the second appeal, the DPP succeeded in having the decision in favour of AM reversed. Several factors, the judgment by the DPP, the variety of cases, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.
Statutes: Homicide Act 1957, Suicide Act 1961 2, Coroners and Justice Act 2009, European Convention on Human Rights 8
This case cites:
    - See Also - Nicklinson -v- Ministry of Justice and Others QBD (124 BMLR 191, [2012] Med LR 383, (2012) 15 CCL Rep 427, [2012] WLR(D) 75, (2012) 124 BMLR 191, [2012] HRLR 16, WLRD, Bailii, [2012] EWHC 304 (QB))
    The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless. <br . .
    - At Admin - Nicklinson, Regina (on The Application of) -v- Ministry of Justice Admn ([2015] AC 657, Bailii, [2012] EWHC 2381 (Admin), WLRD, [2012] WLR(D) 248)
    The claimants each suffered 'locked in syndrome' after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
    - Appeal from - Nicklinson and Another, Regina (on The Application of) -v- A Primary Care Trust CA (Bailii, [2013] EWCA Civ 961, [2013] WLR(D) 326, WLRD)
    The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
    Held: The position in law that voluntary euthanasia . .
    - Cited - Rex -v- Croft CCA ([1944] 1 KB 295)
    A person who was present at the suicide of another and who assisted or encouraged the suicide, is guilty of murder as a principal in the second degree. The survivor of a suicide pact was properly convicted of murder. The court considered liability . .
    - Cited - Airedale NHS Trust -v- Bland HL (lip, [1993] AC 789, [1993] 2 WLR 316, Bailii, [1992] UKHL 5)
    The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
    - Cited - Inglis, Regina -v- CACD (Bailii, [2010] EWCA Crim 2637, [2011] 2 Cr App R (S) 13)
    The appellant was mother of the victim. He had suffered catastrophic injuries. She had tried to end his life in a 'mercy killing', but was discovered, charged with attempted murder, and released on bail. On a second occasion she injected him with a . .
    - Cited - Aintree University Hospitals NHS Foundation Trust -v- James SC (Bailii, [2013] UKSC 67, [2014] 1 All ER 573, [2014] Med LR 1, [2014] 1 AC 591, (2014) 135 BMLR 1, [2013] BUS LR 1199, [2013] WLR(D) 421, [2014] 1 FCR 153, [2013] 3 WLR 1299, (2013) 16 CCL Rep 554, Bailii Summary, WLRD, UKSC 2013/0134, SC Summary, SC)
    The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
    - Cited - In Re B (A Minor) (Wardship: Medical Treatment) CA ([1990] 3 All ER 927, [1981] 1 WLR 1424)
    The child was born with Down's Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
    - Cited - In re F (Mental Patient: Sterilisation) HL ([1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, CA and HL(E), Bailii)
    Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
    - Cited - In re J (a Minor) (Wardship: Medical treatment) CA ((1991) Fam 33, [1990] 3 All ER 930, [1991] 2 WLR 140, Times 03-Oct-90, [1992] 1 FLR)
    J was born at 27 weeks', weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
    - Cited - Ms B -v- An NHS Hospital Trust FD ((2002) 65 BMLR 149, [2002] Fam Law 423, [2002] 2 FCR 1, [2002] 1 FLR 1090, [2002] 2 All ER 449, [2002] Lloyd's Rep Med 265, Bailii, [2002] EWHC 429 (Fam))
    The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
    - Cited - In re B (Consent to treatment: Capacity) FD (Times 26-Mar-02, Gazette 25-Apr-02, [2002] 1 FLR 1090)
    The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
    - Cited - In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd's Rep Med 425, [2001] UKHRR 1)
    Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
    - Cited - Regina (on the Application of Pretty) -v- Director of Public Prosecutions and Secretary of State for the Home Department HL (House of Lords, Times 05-Dec-01, Bailii, [2001] UKHL 61, [2002] 1 AC 800, [2001] 3 WLR 1598, [2002] 2 Cr App R 1, [2002] 1 FCR 1, [2002] UKHRR 97, [2002] ACD 41, [2002] 1 All ER 1, [2002] 1 FLR 268, 11 BHRC 589, (2002) 63 BMLR 1, [2002] Fam Law 170, [2002] HRLR 10)
    The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
    - Cited - In re B (Consent to treatment: Capacity) FD (Times 26-Mar-02, Gazette 25-Apr-02, [2002] 1 FLR 1090)
    The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
    - Cited - Koch -v- Germany ECHR (497/09, Bailii, [2012] ECHR 1621, [2012] ECHR 2031, 497/09 - CLIN, Bailii)
    Article 8-1
    Respect for private life
    Refusal by the German courts to examine the merits of an application by a man whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to . .
    - Cited - Gross -v- Switzerland ECHR (67810/10 - Chamber Judgment, Bailii, [2013] ECHR 429, 67810/10 - Legal Summary, Bailii, [2013] ECHR 580, Bailii, [2014] ECHR 1362)
    <a title='Source of text]ECHR[/url] Article 8
    Positive obligations
    Article 8-1
    Respect for private life
    Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a . .
    - Cited - Hasan and Chaush -v- Bulgaria ECHR (30985/96, (2002) 34 EHRR 55, Bailii, [2000] ECHR 509, (2002) 34 EHRR 1339, Bailii, [2000] ECHR 511)
    The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: 'Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
    - Cited - Pretty -v- The United Kingdom ECHR (2346/02, (2002) 35 EHRR 1, Bailii, [2002] ECHR 423, Bailii)
    The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
    - Cited - Hirst -v- United Kingdom (2) ECHR (Times 10-Oct-05, ECHR, Bailii, 74025/01, (2006) 42 EHRR 41, Bailii, [2005] ECHR 681)
    (Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
    Held: Voting is a right not a privilege. It was a right central in a . .
    - Cited - Purdy, Regina (on the Application of) -v- Director of Public Prosecutions HL (Bailii, [2009] UKHL 45, Times, [2009] UKHRR 1104, (2009) 12 CCL Rep 498, [2009] HRLR 32, [2010] 1 Cr App R 1, (2009) 109 BMLR 153, 12 CCL Rep 498, 27 BHRC 126, [2009] 3 WLR 403, [2009] 4 All ER 1147)
    The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would want her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
    - Cited - Regina -v- Howe etc HL ([1987] AC 417, [1987] 2 WLR 568, Bailii, [1986] UKHL 4, (1987) 85 Cr App R 32)
    The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
    Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
    - Cited - Airedale NHS Trust -v- Bland CA (lip, [1993] 2 WLR 316)
    The official Solicitor appealed a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
    Held: The doctors sought permission to act in accordance with recommended . .
    - Cited - Woolwich Equitable Building Society -v- Inland Revenue Commissioners (2) HL ([1993] AC 70, [1992] 3 All ER 737, (1992) 3 WLR 366)
    The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
    - Cited - Rodriguez -v- Attorney General of Canada ([1993] 7 WWR 641, [1993] 3 SCR 519, (1993) 24 CR (4th) 281, (1993) 82 BCLR (2d) 273, (1993) 85 CCC (3d) 15, (1993) 17 CRR (2d) 193, [1994] 2 LRC 136, Canlii, (1993) 107 DLR (4th) 342)
    <a title='Source of text]Canlii[/url] (Supreme Court of Canada) Constitutional law - Charter of Rights - Life, liberty and security of the person - Fundamental justice - Terminally ill patient seeking assistance to commit suicide - Whether . .
    - Cited - Buckley -v- The United Kingdom ECHR (Times 09-Oct-96, 20348/92, 23/1995/529/615, Bailii, [1996] ECHR 39, ECHR, (1996) 23 EHRR 101, Bailii, [1996] ECHR 39)
    The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the . .
    - Cited - Bellinger -v- Bellinger HL (House of Lords, [2003] UKHL 21, Times 11-Apr-03, Bailii, [2003] 2 AC 467, [2003] 2 All ER 593, [2003] Fam Law 485, 14 BHRC 127, [2003] 2 WLR 1174, 72 BMLR 147, [2003] 2 FCR 1, [2003] HRLR 22, [2003] 1 FLR 1043, [2003] UKHRR 679, [2003] ACD 74)
    The parties had gone through a form of marriage, but Mrs Bellinger had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was . .
    - Cited - Regina -v- Kennedy HL (Bailii, [2007] UKHL 38, Times 19-Oct-07, [2007] 4 All ER 1083, [2007] 3 WLR 612, [2007] Inquest LR 234, [2008] 1 Cr App Rep 19, [2008] Crim LR 222, [2008] AC 269)
    The defendant had been convicted of manslaughter. He had supplied a class A drug to a friend who then died taking it.
    Held: The House was asked 'When is it appropriate to find someone guilty of manslaughter where that person has been involved . .
    - Cited - Countryside Alliance and others, Regina (on the Application of) -v- Attorney General and Another HL (Bailii, [2007] UKHL 52, Times 29-Nov-07, [2007] 3 WLR 922, [2008] HRLR 10, [2008] Eu LR 359, [2008] UKHRR 1, [2008] 2 All ER 95, [2008] 1 AC 719)
    The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
    Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
    - Cited - In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL (Bailii, [2008] UKHL 38, Times 23-Jun-08, HL, [2008] UKHRR 1181, [2008] Fam Law 977, [2008] 2 FCR 366, [2009] 1 AC 173, [2008] NI 310, [2008] 24 BHRC 650, [2008] 2 FLR 1084, [2008] HRLR 37, [2008] 3 WLR 76)
    The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
    Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
    - Cited - Greens -v- The United Kingdom ECHR (Bailii, [2010] ECHR 1826, 60041/08, Bailii)
    The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
    Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
    - Cited - Sinclair Collis Ltd, Regina (on The Application of) -v- The Secretary of State for Health CA (Bailii, [2011] EWCA Civ 437)
    The claimants sought to challenge the validity of rules brought in under the 2009 Act as to the placement of cigarette vending machines in retail outlets.
    Held: The Court considered the general considerations governing proportionality and . .
    - Cited - A, B And C -v- Ireland ECHR (25579/05, Bailii, [2010] ECHR 2032, (2011) 53 EHRR 13, [2011] 3 FCR 244, 29 BHRC 423)
    Grand Chamber The Court considered the prohibition of abortion in Ireland: 'The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
    - Cited - Haas -v- Switzerland ECHR ([2011] ECHR 2422, (2011) 53 EHRR 33, Bailii, 31322/07)
    The applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. Relying on . .
    - Cited - Lautsi -v- Italy ECHR ([2011] Eq LR 633, Bailii, [2011] ECHR 2412, (2012) 54 EHRR 3, [2011] ELR 176, 30 BHRC 429)
    (Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
    - Cited - AXA General Insurance Ltd and Others -v- Lord Advocate and Others SC (SC, SC Summary, UKSC 2011/0108, Bailii, [2011] UKSC 46, Bailii Summary, 2011 SLT 1061, [2012] 1 AC 868, (2011) 122 BMLR 149, [2011] 3 WLR 871)
    The appellants had written employers' liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
    - Cited - Quila and Another, Regina (on The Application of) -v- Secretary of State for The Home Department SC (SC, SC Summ, UKSC 2011/0022, Bailii Summary, Bailii, [2011] UKSC 45, [2012] 1 All ER 1011, [2011] 3 WLR 836, [2012] Imm AR 135, [2012] 1 FLR 788, [2011] UKHRR 1347, [2012] Fam Law 21, [2011] 3 FCR 575, [2011] INLR 698, [2012] 1 AC 621, [2012] HRLR 2)
    Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
    - Cited - Abdullah Yasa And Others -v- Turkey ECHR (44827/08 - Legal Summary, Bailii, [2013] ECHR 839)
    Article 3
    Degrading treatment
    Inhuman treatment
    Serious injury to nose caused by tear gas canister fired by police officer: violation
    Article 46
    Article 46-2
    Execution of judgment
    Measures of a general . .
    - Cited - Sidaway -v- Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL ([1985] 1 All ER 643, [1985] 2 WLR 480, [1985] AC 871, Bailii, [1985] UKHL 1)
    The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
    Held: A mentally competent patient has an absolute right to refuse to consent to medical . .
    - Cited - Weber and Saravia -v- Germany ECHR ((2008) 46 EHRR SE5, [2006] ECHR 1173, Bailii, 54934/00)
    (admissibility) 'The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the . .
    - Cited - Huang -v- Secretary of State for the Home Department HL (Bailii, [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581, [2007] 4 All ER 15, (2007) 24 BHRC 74, [2007] INLR 314, [2007] UKHRR 759, [2007] 1 FLR 2021, [2007] Imm AR 571, [2007] Fam Law 587, [2007] HRLR 22)
    The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
    - Cited - Gillan and Quinton -v- The United Kingdom ECHR (Bailii, [2010] ECHR 28, 4158/05, Times, [2010] Crim LR 415, 28 BHRC 420)
    The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
    Held: 'the concept of 'private . .

This case is cited by: 15-Aug-15
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