The claimant had an arguable case for declarations that it would not be unlawful, on the grounds of necessity, for a doctor to terminate or assist in the termination of his life, alternatively that the law of murder and/or assisted suicide was incompatible with his right to respect for private life under the European Convention on Human Rights 1950 (ECHR) art.8.
The Ministry of Justice (MoJ) applied to strike out the claims of Tony Nicklinson for declarations that it would be lawful for a doctor to assist in the termination of his life. Nicklinson had suffered a stroke that left him paralysed below the neck and unable to speak. His case was that his condition made him want to terminate his own life but was prevented from doing so by his disability; he was not vulnerable and his right to choose when and how to die should be respected.
He sought either a declaration that it would not be unlawful for a doctor to assist in the termination of his life, or a declaration that the law of murder or assisted suicide was incompatible with his right to respect for private life, as it criminalised voluntary active euthanasia or assisted suicide.
The MoJ contended that the proceedings had no real prospect of success and that the law on murder and assisted suicide was clear and any change was a matter for Parliament. Nicklinson asserted that it was arguable that the common law should develop to provide a lawful route to ending his suffering by ending his life at a time of his choosing with the assistance of a doctor in controlled circumstances that had been sanctioned by the court.
(1) It was arguable that if the court could sanction and set the circumstances in which the life of someone who lacked capacity could be ended, then it could and should do so in Nicklinson’s case. It was also arguable that the law on the availability of necessity as a defence to murder or assisted suicide was not as clear as the MoJ asserted. There was a duty owed by doctors to Nicklinson based on his common law rights of self-determination and dignity and his art.8 rights that was engaged in determining the defences available to charges of murder or assisted suicide. The court could determine in other fields whether it was lawful to end a person’s life and so the relief sought by Nicklinson did not necessarily lead to a conclusion that the law should provide a defence to murder or assisted suicide in cases of involuntary active euthanasia. Accordingly, Nicklinson had an arguable base for the declaratory relief sought. (2) The court should not refuse to entertain the case on the basis that only Parliament could bring about the change Nicklinson sought. (3) It was not usually appropriate for a civil court to grant a declaration as to whether conduct would amount to a criminal offence, but these were exceptional circumstances. (4) Nicklinson had an arguable case and the claim for the second declaration should be allowed to proceed.
For the claimant Nicklinson
Paul Bowen, 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
Corby Borough Council v Scott; West Kent Housing Association v Haycraft.  EWCA Civ 276. Court of Appeal (Civil Division). Lord Neuberger MR; Davis LJ; Richards LJ. 13 March 2012
It was desirable for a judge to consider at an early stage in possession proceedings whether a tenant’s case on proportionality under the European Convention on Human Rights art.8 was arguable. If a case could not succeed, it should not be allowed to take up more court time and delay the landlord’s right to possession.
For the appellant Corby Borough Council
Arden Chambers’ Jonathan Manning; instructed directly
by Corby Borough Council
For the respondent Scott
St Ives Chambers’ Michael Singleton; Community Law Service solicitor Helen Reay
For the appellant Haycraft
Holden & Co counsel Robert Denman
For respondent West Kent Housing
Hardwicke’s Andrew Lane; Batchelors partner Daniel Skinner