New Judgment: R (Nicklinson & Anor) v Ministry of Justice; R (AM) v DPP  UKSC 38
25 Wednesday Jun 2014
On appeal from:  EWCA Civ 961.
The case is about three severely disabled men who want (or wanted) to die. The Court considered whether the law relating to assisting suicide infringes the ECHR, and whether the policy published by the DPP relating to prosecutions of those who are alleged to have assisted suicide was lawful.
Held: the Supreme Court unanimously held that, following ECtHR authority, the question of whether to impose a general ban on assisted suicide lay within the margin of appreciation of the UK. By a majority of 5, the Court held that within the constitutional settlement of the UK, it had the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide. However, it would be inappropriate for a court to decide whether the Suicide Act 1961, s 2 was incompatible with ECHR, art 8 before giving Parliament the opportunity to consider the position in the light of this judgment. Of those 5 Justices, 2 would have been inclined to grant a declaration of incompatibility now.
On the DPP’s policy governing when she would prosecute for the offence of assisting a suicide, the Court unanimously upheld her cross-appeal. The exercise of judgment by the DPP, the variety of relevant factors, 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. During the proceedings, counsel for the DPP indicated that under the published policy a stranger who was not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director would be able to consider further whether that indication should stand and whether, if so, the published policy needed amendment, without it being appropriate to order her to undertake any such review.