Introduction an offence if- (a)D does an act

Introduction

This article
considers whether judges impose artificial and undesirable limits on their
power to change the law and weather all they are doing on morally sensitive
issues is simply carrying out their judicial function of interpreting law
leaving the role of making and changing law to Parliament. The starting point
has to be what do we mean by the term morality and why do we expect so much of
judges and should they be any better at making moral judgments than the
politicians in Parliament? It seems no matter what decision judges arrive at on
morally sensitive issues they will always run the risk of it being said they
are unelected officials and cannot be called to account if they make law,
whereas elected politicians can be called to account. It is unsurprising that
judges are accused of trying to ‘steer clear’ of changing or modifying the law on
morally sensitive issues. A guide as to how judges in the highest court in the
land approach matters can be identified in the recent judgment of Lord
Neuberger in the supreme court in the case of Nicklinson1
on the highly sensitive issue of assisted suicide and the competing issues of
Parliamentary and EU sovereignty, which arose in the judgment.

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What do we mean by morality?

The OED2
defines morality as “the principal governing right and wrong behaviour” and
offers very little by way of assistance. It seems one person’s view of right
and wrong will not be the same as another person’s but as can be seen from Lord
Neuberger3
he considered assisted suicide a very sensitive issue of morality and worthy of
lengthy consideration in his judgement. Issues of morality are often
complicated by the ongoing ‘war of sovereignty’ between the UK courts and the
EU institutions, which give rise to concerns that judges do impose artificial
limits on their powers.

The Law

Suicide Act s2
1961 (SA)4

(1)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 European Convention of Human Rights
(ECHR)5

(1)Everyone has the right to respect for his
private and family life, his home and his correspondence.  

Section 4
Human Rights Act 19986

(1)Subsection (2) applies in any proceedings in
which a court determines whether a provision of primary legislation is compatible
with a Convention right.

(2)If
the court is satisfied that the provision is incompatible with a Convention
right, it may make a declaration of that incompatibility.

 

The two appeals in Nicklinson

The supreme court
handed down its decision in Nicklinson in 2014, six months7
after hearing the legal arguments. There were two appeals which arose out of
claims brought by three men. The first appeal consisted of Tony Nicklinson and
Paul Lamb. Mr Nicklinson suffered from locked in syndrome as a result of a
catastrophic stoke and was completely paralysed. He could only communicate by
blinking and Lord Neuberger described his life as “dull, miserable, demeaning,
undignified and intolerable”8.He
was unable to end his life otherwise than by starving himself and wanted
assistance from someone to inject him with a lethal drug or help him set up and
operate a blink operated machine. Mr Nicholson sought a declaration that it
would be lawful for a doctor to kill or assist him to bring his life to an end
or a declaration that the Suicide Act was incompatible with his Article 8
Convention Right. The High Court refused both applications. Mr Nicholson then
proceeded to refuse all food and medical treatment and died a few days later9.
For reasons I will not dwell on Nicholson’s wife continued his legal challenge
in her name as his testatrix and the Court of Appeal 10
subsequently dismissed her appeal. Paul Lamb was added as a claimant to the
action of Mr Nicholson in the Court of Appeal. Mr Lamb had been in a car crash
and was completely immobile and could only move his right hand. He applied for
the same relief as Nicklinson and was also refused.

The second appeal
was brought by a man only known as ‘Martin’ who suffered from ‘brainstem
stroke’11.
Martin wanted a carer or health professional to assist him to travel to
Dignitas12
in Switzerland to have an assisted suicide. Unfortunately, the CPS prosecution
policy on assisted suicide appeared to disadvantage professional or medical
assistors to greater risk of prosecution other than a lay person. Martin sought
an order that the DPP13
should clarify his policy for prosecutors and sought clarification and
modification to enable responsible people including carers to know that they
could assist Martin committing suicide. Martins appeal failed in the High Court
and was partially successful in the Court of Appeal Lords Dyson and Elias14
considering the Policy not sufficiently clear in relation to healthcare
professional. The Court of Appeal gave Mrs Nicholson and Mr Lamb leave to appeal
in the first appeal and the DPP leave to appeal on the second appeal.

 

The Judgment

Lord Neuberger’s
starting point in Nicklinson was to cover the law on the issue of assisted
suicide together with related case law. He began with the basic premise that killing
someone with intention is murder and without intention can be manslaughter. He
then considered mercy killings in the context of assisted suicide but said it
would amount to murder15.

 

Lord Neuberger
helpfully reviewed related case law throughout his judgment were the courts
introduced what amounts to and what I shall call ‘legal fictions’ namely court
sanctioned acts which lead to the death of a person and do not fall foul on the
law of murder and/or assisted suicide.

 

Lord Neuberger’s
analysis of the case law appears to demonstrate the courts will on occasions to
do the exact opposite of imposing artificial limits on themselves and introduce
concepts such as ‘legal fictions’ to allow applicants to succeed.

 

 

In Airedale16
the courts held “the doing of a positive act with the intention of ending life
is and remains murder”. However, Lord Goff in Bland,17-
said, “No offence when treating a patient which hastens death, if the purpose
of the treatment is to relive pain and suffering”, even if a positive act is
needed to bring life to an end. Bland decided that there was no offence in
refusing or withdrawing medical treatment or assistance because the court
introduced the ‘legal fiction’ of calling a positive act an omission. This is a
clear example of the courts not imposing artificial limits on their powers.

 

 

The case of Re A18
involved conjoined twins and is of significance. In order for one twin to live,
it needed to be separated from the other which enviably hastened the death of
the subsequent twin and therefore a positive act of separation was needed. This
was not a positive act that the court could call an omission as per the case of
Bland. The court took the law further in allowing positive acts in order to
improve the life expectancy of one twin not withstanding the positive act would
cause the death of the other. This is further evidence of the court not
imposing artificial limits on their powers. In Re B19
Dame Butler-Sloss P authorised a more convoluted legal fiction, and extended
the scope of positive acts the court would allow. In this case, she authorised
the turning off of a life support machine because she said the continued
application of the life support machine to the person’s body constituted in law
trespass to the person and that trespass needed to be stopped.

 

A theme running
through these cases is that decisions are needed to be made ‘now’ and cannot
wait. The courts will intervene and demonstrate a willingness to remove
artificial limits on their powers and if necessary, introduce ‘legal fictions’
to overcome the problems. An example of this comes from the case of Re A calling a positive act an omission.

 

So why is it the
courts are reluctant to intervene in cases of assisted suicide but will do so
in the cases listed above? The answer may lie in the number of potential
claimants which could be affected by their decision, i.e., there will be very
few cases of conjoined twins in any one year but, as Lord Neuberger said20
there could be many thousands of requests for assisted suicide.

 

 

Lord Neuberger then
considered the ‘wider issue’ of Sovereignty both in terms of the courts
relationship with parliament and with the EU institutions on morally sensitive
issues. In these situations, questions on sovereignty can’t be ignored as the claimants
often seek a declaration that UK legislation is inconsistent with EU
legislation. In Nicklinson Lord Neuberger appeared to impose on himself and the
court an artificial limit as to the courts power, when he said,21
“…whether section 2 infringes Article 8, on the ground that it is an issue
which is purely one for Parliament?” It makes no sense for Lord Neuberger to
say it was purely a matter for parliament. Parliament gave the courts power to
make declarations of incompatibility. Lord Neuberger then considered the cases
of Koch22,
Hass23
and Gross24
and found them of no particular assistance, save only to confirm, that they did
not call into question his decision that s2 SA 61 did not impose a blanket ban.
On the question of blanket bans the courts did not impose artificial limits on
their powers because there was no need to and the decision of Lord Neuberger
was consistent with Parliaments intention in s2. A declaration of
incompatibility could have meant unelected judges appearing to make law and
effectively abolishing an Act of parliament and this could be seen as a breach
of the Doctrine of Separation of Powers. Even though, a declaration does not
abolish an Act of Parliament.

 

As far as the
issue of the DPP’s guidelines are concerned the court would not make the order
sought by Martin.

 

 

The courts will in
some cases impose what could be called artificial and undesirable limits on
themselves especially in cases on assisted suicide and Parliamentary
Sovereignty. In other cases they will not impose artificial limits on their
powers and use the concept of ‘legal fictions’.

 

 

 

 

 

 

Conclusion

In cases involving
morally sensitive issues, for example, assisted suicide, issues of sovereignty between
the courts and parliament as well as EU institutions often arise. The courts
are not afraid to create ‘legal fictions’ to overcome limitations on their
powers, s2 SA 61, which does not allow anyone to assist someone to commit suicide
by way of a positive act (Bland) but by virtue of judicial intervention we find
that positive acts to kill which are not permitted are called omissions as in
Re A and therefore judicially sanctioned. In addition, positive acts are
allowed in exceptional cases as in Re B, the ‘legal fiction’ being the removal
of trespass to a person. However, on the ‘wider issue’ of sovereignty the
supreme court seemed to be divided between the more conservative arm, four of the
Supreme Court judges25
in Nicklinson were clearly of the view that it would be institutionally
inappropriate to make an declaration notwithstanding s4 HRA 1998 allows them to
make one. Two of the more liberal judges (Hale, Kerr), took the stance that they
would have made a declaration in any event. Lord Neuberger along with Lords
Mance and Wilson said they would be prepared to make a declaration in the
future if the evidence supported it but did not do so in this case. Lord
Neuberger added the caveat 26,
“…at this time”. He appears to be issuing a warning to Parliament that if they
do not address the issue as the elected representatives of the people, the
courts may be forced to address it for them. On the question of the declaration
that Martin sought that the DPP’s guidelines were insufficient Lord Neuberger
in common with all other members of the court27
said, “I do not consider that the court should involve itself with the terms of
the DPP’s policy on assisted suicide…”, again adding a further caveat, “…I
would expect the DPP to clarify her policy”. This seems to be another warning,
but this time directed to the DPP that if ‘she’ doesn’t clarify the guidelines,
the courts will. As to the ‘floodgates’ argument, it could be argued that the
more individuals that are affected by a judgment, the less likely the courts
will exercise judicial intervention, and they are more likely to impose limits
(artificial or not) on their power leaving the decision-making process to
Parliament. These applications to the highest court in the land by three very
sick individuals to bring their lives to an end, seeking a s4 HRA 1998
declaration and a declaration that the DPP’s guidelines were unclear, all of
which failed may have as much impact as if there had been a verdict in favour
of the appellants28.
The reason appears to be that a majority of the court have sent a ‘warning’ to
Parliament to resolve the issue of assisted suicide and the lack of clarity on
the DPP’s guidelines because next time, the decision of the court, may be
different and they may decide to free themselves from any artificial
limitations (to the extent they existed) they imposed on themselves in
Nicklinson.

 

1 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38

2 https://en.oxforddictionaries.com/definition/morality

3 Para 90-99

4 Suicide Act 1961

5 European Convention
of Human Rights 1953

6 The Human Rights
Act 1998

7 The Supreme Court
decision in Nicklinson: Human Rights, criminal wrongs and the dilemma of death,
Dr Alexandra Mullock, Para 1

8 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 3

9 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 6

10 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 7

11 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 9

12 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 10

13 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 11

14 Regina (Nicholson) and another v Ministry
of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC 38-
Paragraph 12

15 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 17

 

16 Airedale NHS Trust v Bland 1993
AC 789 , 885

17 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 18

18 re A (Children) (Conjoined Twins:
Surgical Separation) 2001 Fam 147 (“Conjoined Twins”)

19 re B (Consent to Treatment –
Capacity) 2002 1 FLR 1090 (” Re B (Treatment) “)

 

20

21 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 58 C

22 Koch v Germany (2013) 56 EHRR 6 , paras 46 and 51

23 Haas v Switzerland (2011) 53 EHRR
33, para 51

24 Gross v Switzerland (2014) 58 EHRR
7 , para 60. 

 

25 Regina (Nicholson)
and another v Ministry of Justice and others (CNK Alliance Ltd and others
intervening) 2014 UKSC 38- Paragraph 148

26

27Regina (Nicholson) and another v Ministry of
Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC 38- Paragraph 148 E

 

28