Bindmans and Doughty Street win first round of ‘right to die’ case

The High Court has given permission for Bindmans to bring a ‘right to die’ matter before the courts after it threw out the Ministry of Justice’s (MoJ) strike out application.

Doughty Street Chambers’ Paul Bowen was instructed by Bindmans partner Saimo Chahal to act for locked-in syndrome sufferer Tony Nicklinson in his fight against the Government.

Nicklinson had a stroke in 2005 that left him paralysed from the neck down and only able to communicate via an electronic board that he operates by using tilts of his head and his eyes. He wants a doctor to be lawfully able to end his life.

The MoJ instructed David Perry QC of 6 King’s Bench Walk to have the claim struck out on the basis that this was a case in which the civil courts should not entertain an application for declaratory relief.

It also contended that the doctrine of necessity could only provide a defence to murder or assisted suicide if the choice facing the accused was between two deaths.

In his ruling Mr Justice Clarke said: “The claimant accepts that what he’s seeking to do is to change the existing understanding of the common law.

“The starting points for his argument are the nature of the common law, and so its ability to develop, adapt or change to meet new or changing circumstances, the moral arguability of the result he seeks and the point that his arguments have not been expressly raised and addressed before. In my view, all of these points support an arguable base for the result sought by the claimant.”

Chahal commented: “It would be completely wrong if the arguments on Tony’s behalf could not be fully argued on the grounds that we should wait for parliament to change the law. The court has a live case before it and is fully able to examine the details in depth and to reach a decision having heard all of the facts evidence and legal arguments.”

The case will now proceed to a full hearing after both sides have filed further evidence.