Bindmans and Leigh Day fail to convince court on 'right to die' cases

In the High Court Lord Justice Toulson, Mr Justice Royce and Mrs Justice Macur rejected challenges to the legal ban on voluntary euthanasia brought by Bindmans partner Saimo Chahal and Doughty Street Chambers’ Paul Bowen QC on behalf of their client Tony Nicklinson, who suffers from locked-in syndrome.

The court also refused a claim from Leigh Day & Co human rights partner Richard Stein on behalf of his physically disabled client ‘AM’ that the Director of Public Prosecutions (DPP) should clarify the law on assisted suicide. Stein instructed Philip Havers QC of One Office Crown Row and Matrix’s Adam Sandell.

Both claimants suffer from catastrophic physical disabilities but are fully conscious and wish to die with dignity and without further suffering. However, their conditions mean they cannot commit suicide without help and they therefore brought separate cases with a similar theme (12 March 2012).

The court ruled on several key issues and set out that it would be “wrong of the court” to depart from the position that voluntary euthanasia is murder no matter what the motives and that to do so would “usurp the proper role of parliament”.

The DPP Keir Starmer was represented by 9-12 Bell Yard’s John McGuinness QC, The court ruled that the DPP’s policy was clear that assisted suicide carried a “real risk of prosecution”.

The General Medical Council (GMC) instructed Robert Englehart QC and Andrew Scott of Blackstone Chambers and the SRA turned to Iain Miller of Bevan Brittan as well as Fountain Court’s Timothy Dutton QC and Marianne Butler to represent their interests in whether they should also be under a legal duty to clarify their positions.

AM’s claim against the GMC and SRA failed on a similar ground to the DPP claim.

Considering whether the mandatory life sentence for murder is incompatible with the European Convention of Human Rights in cases of genuine voluntary euthanasia, Toulson LJ said the issue should be decided only in a case in which it is necessary to do so.

In his leading judgment, Toulson LJ concluded: “Tony’s and AM’s circumstances are deeply moving. Their desire to have control over the ending of their lives demands the most careful and sympathetic consideration, but there are also other important issues to consider.

“A decision to allow their claims would have consequences far beyond the present cases. To do as Tony wants, the court would be making a major change in the law. To do as AM wants, the court would be compelling the DPP to go beyond his established legal role. These are not things which the court should do. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place.

“Under our system of government these are matters for parliament to decide, representing society as a whole, after parliamentary scrutiny, and not for the court on the facts of an individual case or cases.”

Chahal, head of civil liberties and social welfare at Bindmans, has indicated that she will be appealing the decision on behalf of Nicklinson.

Stein said he will be discussing an appeal with his client AM, but has advised him there are “strong grounds” for a challenge to the Court of Appeal.

The legl line-up:
For the claimant Nicklinson

Paul Bowen QC, Doughty Street Chambers

Saimo Chahal, partner, Bindmans

For the defendant Ministry of Justice

David Perry QC, 6 King’s Bench Walk

James Strachan, 4-5 Gray’s Inn Square

The Treasury Solicitors

For the claimant AM

Philip Havers QC, One Crown Office Row

Adam Sandell, Matrix Chambers

Richard Stein, partner, Leigh Day & Co

For the defendant the DPP

John McGuinness QC, 9-12 Bell Yard

The CPS Appeals Unit

For the defendant the SRA

Timothy Dutton QC, Fountain Court

Marianne Butler, Fountain Court

Iain Miller, partner, Bevan Brittan

For the defendant the GMC

Robert Englehart QC, Blackstone Chambers

Andrew Scott, Blackstone Chambers

GMC Legal

For the intervener the Attorney General

Jonathan Swift QC, 11KBW

Joanne Clement, 11KBW

The Treasury Solicitors

For the intervener Care Not Killing (CNK) Alliance

Charles Foster, Outer Temple

Benjamin Bradley, Outer Temple

David Foster, partner, Barlow Robbins

- Irwin Mitchell partner Yogi Amin gives his opinion on the Nicklinson judgment here.