T, R (On the Application Of) v Ministry of Justice, Court of Appeal - Administrative Court, October 09, 2018, [2018] EWHC 2615 (Admin)

Resolution Date:October 09, 2018
Issuing Organization:Administrative Court
Actores:T, R (On the Application Of) v Ministry of Justice
 
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Neutral Citation Number: [2018] EWHC 2615 (Admin)

Case No: CO/1319/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/10/2018

Before :

LORD JUSTICE IRWIN

MR JUSTICE PHILLIPS

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Between :

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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

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Draft 9 October 2018 14:04 Page 8

Lord Justice Irwin:

Introduction

1. 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.''

2. 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.

3. 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.

4. 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?''

5. 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.

6. 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.

7. On 16 August 2018, this Court was informed that Mr Conway had issued an application for permission to appeal to the Supreme Court.

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