T, R (On the Application Of) v Ministry of Justice [2018] EWHC 2615 (Admin)

[2018] EWHC 2615 (Admin)Case No CO/1319/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/10/2018
Before
LORD JUSTICE IRWINMR JUSTICE PHILLIPS
Between
THE QUEEN (on the application of T)ClaimantMINISTRY OF JUSTICEDefendant
Paul Bowen QC and Jennifer MacLeod (instructed by Bindmans LLP) for ClaimantJames Strachan QC and Benjamin Tankel (instructed by The Government Legal Department) for DefendantHearing Hearing dates: 7 and 8 March 2018
Judgment Approved

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.[8]In his written submissions of 13 July 2018, the Claimant:
“4. …does not seek to advance further argument on the Preliminary Issue in light of the judgment in Conway. Rather, the Claimant accepts that the judgment of the Court of Appeal in Conway, albeit strictly obiter on this issue, is such that the Divisional Court is bound to find against the Claimant on the Preliminary Issue. In light of this ruling, however, the Claimant seeks: 4.1. A judgment and order of the Divisional Court dismissing the Claimant’s application on the Preliminary Issue and his application to cross-examine on the basis of the arguments already made and in the light of the judgment in Conway. 4.2. The certification of the Court for a ‘leapfrog’ appeal on the Preliminary Issue to the Supreme Court under either s 1 Administration of Justice Act 1960 (‘the 1960 Act’) (if this is a ‘criminal cause or matter’) or s 12 of the Administration of Justice Act 1969 (‘the 1969 Act’) (if these are ‘civil proceedings’). 4.3. Permission to appeal under s 1 of the 1960 Act (if this is a ‘criminal cause or matter’).”
[9]In the light of that concession (which I regard as inevitable), I will give my reasons concisely.

The Question of Oral Evidence

[10]The Claimant’s submissions on the preliminary issue are based to a significant degree on the remarks of Lord Mance in R (Nicklinson) v Ministry of Justice [2015] AC 657. In that case, four members of the Court (Lords Sumption, Clarke, Reed and Hughes) considered it would be “institutionally inappropriate, or only institutionally appropriate if Parliament refuses to address the issue, for a domestic court to consider whether Section 2 [of the Suicide Act 1961] infringes the Convention” [148]. By contrast, two justices (Baroness Hale DPSC and Lord Kerr) considered it would be “institutionally appropriate” for the Court to determine the issue then. Lord Neuberger PSC and Lord Mance were in agreement that it was not appropriate for the Court to determine the issue at that time, but disagreed with the broader conclusion: [148, 150].[11]It was against that background that Lord Mance said:
“174. I would accept that it is in principle open to claimants in the position of the appellants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence, and, further, that this would not involve inviting the Supreme Court to depart precedentially from Purdy. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being re-litigated in this way, although courts should no doubt discourage such re-litigation in the absence of fresh and significantly different evidence. 175. However, examination of the course of the present case raises in my view serious questions about its suitability for any such exercise. At no stage does this litigation appear to have been approached on the basis that the court should hear primary evidence about the issues. There has been nothing like the wide-ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence which appears to have informed the United States Supreme Court’s judgments in Washington v Glucksberg. Much of the material put before the Supreme Court on the present appeal has been second hand, adduced in other litigation or by other inquiries. Thus Toulson LJ, when referring to the January 2012 report of the Commission on Assisted Dying chaired by Lord Falconer, said (para 24): “We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi-official status”
. The report in fact records that “some prominent individuals and organisations that are fundamentally opposed to any form of assisted dying being legally permitted in the UK” refused to participate in giving evidence (p.39). Toulson LJ also records (para 25) that after judgment was given at first instance by Smith J in Carter v Canada [2012] BCSC 886, counsel for Mr Nicklinson applied for leave to introduce the evidence in that case into the present case, recognising “that, if it were admitted, there would have to be a further hearing in order to enable the witnesses to be called and cross-examined”. 176. Similarly, before the Court of Appeal counsel accepted that determination of the question whether there had been a disproportionate interference with article 8 rights would involve “consideration of a vast array of detailed evidence, including sociological, philosophical and medical material, which would have to be conducted by the Divisional Court”. Before the Supreme Court, on the other hand, the appellants’ primary case has become not to “invite the Supreme Court to embark upon a close study of the evidence that is now available of the relative risks and advantages of relaxing the prohibitions on assisted suicide”, but instead to submit that the Supreme Court “can strike the necessary balance without such a forensic exercise because it has been conducted already by a number of expert bodies whose conclusions are remarkably similar and upon whose conclusions the Court can place weight”. In the alternative, “if the Court considers that it cannot carry out the balancing exercise without further exploration of the underlying evidential issues”, they repeat their request that the case should be remitted to the High Court for that exercise to be conducted along the lines of that in Carter v Canada [2012] BCSC 886, with appropriate guidance as to how the balancing exercise is to be conducted. 177. The appellants’ primary case before the Supreme Court amounts in substance to an invitation to short-cut potentially sensitive and difficult issues of fact and expertise, by relying on secondary material. There can in my opinion be no question of doing that. Their secondary case (their primary case below) is that the case should in effect re-commence from the beginning with directions for evidence to be called and examined on the relevant issues of fact. But the handing down of the first instance decision in Carter v Canada shortly before the Divisional Court hearing is not a justification for not applying at the outset for a trial of the relevant issues on the basis of evidence directly examined before the court.” “We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi-official status”. “can strike the necessary balance without such a forensic exercise because it has been conducted already by a number of expert bodies whose conclusions are remarkably similar and upon whose conclusions the Court can place weight”.[12]For my part, I found it understandable that Mr Bowen QC, who acted for Mr Nicklinson in the Supreme Court, sought to pick up the gauntlet apparently thrown down by Lord Mance, and to develop this case so as to provide the Court with “primary evidence about the issues” including “wide-ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence”: Nicklinson [175]. There is a great deal of primary evidence already before the Court, in written form. The present issue is whether that body of evidence should be extended in particular by permitting cross-examination of the Defendant’s witness Baroness Finlay.[13]Leave has been given in this case. If this judicial review is litigated to a conclusion, the Court must reach a decision on whether s.2 of the Suicide Act 1961, as amended, is compatible with the ECHR, on the evidence as affecting this Claimant.[14]The present application relates explicitly only to cross-examination of one expert, Baroness Finlay of Llandaff. However, I regard it as inevitable that, if this application were granted, the result would be further applications to call and cross-examine other witnesses, and probably to admit additional oral evidence.[15]Mr Bowen deploys the phrase “legislative facts”, borrowed from Canadian usage and in particular from Carter v AG of Canada [2015] SCC5. He would use that as a synonym for the phrase “the mixed ethical, moral and social policy issues”, which was the phrase in the preliminary issue ordered to be tried. Mr Strachan QC objects to the use of the term, on several grounds: it has never been adopted or approved in English law or precedent, it is a unilateral variant on the language in the preliminary issue, and it is, he says, “tendentious terminology”, which attempts to “re-label the ethical, moral or social policy issues (on which opinion has long been divided and which underlines the policy of the law set by Parliament) as if they were “facts…”.[16]I would acquit Mr Bowen of any surreptitious intent, but I do not find the term useful. I propose to adhere to the phrase in the preliminary issue. There exist facts bearing on the issues in question, and there are also a range of questions not reducible to hard fact, about which opinions must be formed and considered. The content of a study of the impact of the legislation of euthanasia (and assisted suicide) in the Netherlands is principally a question of fact. The methodology, rigour and accuracy of the conclusions of such a study is properly a question of expert opinion. The implications of such a study for the outcome of any English legislative change consequent on a declaration of incompatibility is not a “fact”, but a question of judgement about the future, and moreover is arguably a question beyond the special expertise of some (or perhaps all) of the instructed experts.[17]The Defendant is critical of the degree to which the Claimant has failed to particularise the matters said to require cross-examination. We pressed Mr Bowen on this in the course of the hearing but for my part I did not finish with any clear idea what it was said would be gained by oral evidence.[18]Without reference to the decision in Conway I would have concluded against the Claimant. I do not see that there is a need for oral evidence or cross-examination. It appears to me that the factual foundations for the views of the various experts are either already clear, or can be clarified in submissions from counsel based on the written material. I have of course not been able to analyse the extensive material and evaluate it as would be possible following a trial. If the matter proceeds I would therefore permit the parties to set out any specific factual issues in respect of which they would seek clarification. I emphasise that this is intended to permit factual clarification, not to foster adversarial challenge to expert opinion, save that if it is said by either party that any expert opinion is irrational or perverse, that should be made clear, with short reasons why the assertion is made. Mere differences of opinion or judgement will be evident from the existing reports and should not be the subject of further exchanges.[19]The approach of the Canadian High Court in Carter v AG of Canada [2015] SCC5 seems to me instructive, but very far from determinative of the proper approach to evidence in this case. The provisions of the Canadian Charter of Rights and Freedoms (“the Canadian Charter”) give the Canadian courts a central role, as, in effect, a constitutional court, interpreting a written constitution, with no question of any inhibition derived from the role of the Canadian legislature. That is a very different context.[20]That case is also instructive in its scale. Presumably precisely because the role of the Court was clear and unambiguous, the proceedings took on the quality of a test or guidance case, setting out an interpretation of constitutional rights of wide application. This was a very large-scale hearing, in which an effort was made to assemble a comprehensive range of expertise so as to cover a wide ground. I did not find this case to be a necessarily reliable pointer to the appropriate procedure in the instant case.[21]In addressing this question, the Court of Appeal in Conway said:
“189. As we have said, the evidence in this case is considerable. Important parts of it are conflicting. There was no request for oral evidence or cross-examination. That seems to us to be right. The conflict inherent in the moral and ethical issues involved in balancing the principles of sanctity of life and the right of personal autonomy cannot be resolved in a forensic setting by cross-examination. Conflicts in the expert opinion and factual evidence as to the appropriateness of the criteria in Mr Conway’s scheme and the existence and extent of risk of an incorrect decision that the substantive criteria are satisfied are unlikely to be resolved satisfactorily by cross-examination. Furthermore, the evidence available to the court is necessarily limited to that which the parties wish to adduce. Unlike Parliament, or indeed the Law Commission of England and Wales, the court cannot conduct consultations with the public or any sector of it and cannot engage experts and advisers on its own account. 190. In Pretty Lord Steyn said (at [57]): “In our Parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result with all the necessary inbuilt protections. Essentially, it must be a matter for democratic debate and decision-making by legislatures.”” “In our Parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result with all the necessary inbuilt protections. Essentially, it must be a matter for democratic debate and decision-making by legislatures.””
[22]In considering those remarks on the question of evidence, it is worth emphasising one or two points. First, the evidence before the court in Conway overlapped in great measure with the evidence deployed here. In particular, the Secretary of State relied on the evidence of Professor Baroness Finlay, the focus of the application underlying the preliminary issue here. More of the evidence overlapped. Secondly, it seems to me there is no valid distinction to be made on the approach to evidence between this Claimant and Mr Conway. Although Mr Conway’s “scheme” focussed on those suffering from a terminal illness and who are within six months of death (see Conway [134]), that does not seem to me to be a material distinction for this purpose. The heart of the debate on the consequences of a change in the law is concerned with the impact on vulnerable individuals, on their families, carers and doctors. The evidence reviewed includes jurisdictions where assisted suicide is legal only for those who are terminally ill, and those where the law is more liberal. Whilst a limitation of assisted suicide to those facing an early death may be thought a proper safeguard by those favouring a change in the law, I do not see why it should be a distinction affecting the approach to the evidence to be considered.[23]As Mr Bowen has conceded, the view of the Court of Appeal on the question of oral evidence, while strictly speaking obiter, is of such a “direct, general and unqualified” character, that the Claimant’s arguments on the preliminary issue are bound to be dismissed by this Court. As I have made clear, I would have reached the same conclusion in any event.[24]It follows that my answer to the Preliminary issue would be “no”.

Further Matters

[25]As I have said, the Claimant makes the concession that the Preliminary Issue is very likely to be decided against him. However, there is no concession that the judicial review itself must fail. Despite that, the Claimant argues for permission to appeal, for a certificate permitting a “leapfrog” appeal to the Supreme Court, if the matter is properly regarded as a civil cause or matter, or permission to appeal to the Supreme Court if this is a criminal cause or matter. In each case, the Claimant asks the Court to certify that a point of general public importance is involved in the decision.[26]In my view, these applications are premature. Such appeals would be interlocutory appeals. The applications came before any ruling on the Preliminary Issue, never mind the judicial review itself. It appears to me that, if Phillips J agrees with my view on the Preliminary Issue, the Claimant and his advisers must decide whether they wish to prosecute the judicial review further. If they do, then the question of application for interlocutory appeal and certification can be addressed. If they do not, then different questions arise.[27]For my part, I will seek to do what is possible to facilitate speedy hearings for any further applications.[28]I agree.

Post Script

[29]Following distribution of this judgment in draft, under embargo to the parties and their legal representatives, the Court received the sad news that the Claimant had, with assistance, taken his own life in Switzerland. We wish to express our sympathy for the Claimant’s family at their loss.

Cited in 1 later judgment