R (Nicklinson & Anor) v MoJ [2014]

Facts: The appeal concerned the law in relation to assisted suicide and whether it contravenes with the European Convention on Human Rights (ECHR) Article 8 right to respect for private and family lifes2 of the Suicide act 1961 prohibits the assisting and encouraging of suicide. Applicant raised the issue on grounds of ECHR Art 8 and asked the court to issue a DoI.

Issue : Was the current law on assisted suicide incompatible with article 8 of the Convention?

Held: This is a socially and morally controversial issue that should not be adjudicated. Lords Neuberger, Mance, Wilson and Kerr and Lady Hale all Recognised that theoretically, on a constitution basis, the courts could intervene . Lord Neuberger: inappropriate to intervene until Parliament has had the opportunity to consider the issue.

Academic commentary 💡

-   A “hidden [5:4] majority in favour of finding s2 of the act incompatible with the HRA (Wicks 2015; Hobson 2018)

-   a mere “indication of inconsistency” (Petrie 2019) a “newly created ‘last warning’ mechanism” (Ferreira 2015)

-   The Court should attempt to engage in a dialogue with P by issuing s4 DoI → effectively create obligation on P to consider the issue.

-   “complex socio-political-moral issues” (Webb, Essential Cases: Public Law, 2021)

Relations to criminal law - Defence of necessity

-   The court did not suggest necessity could not be used, but rather that it should not be used in common situations because doing so would mean the courts would be making law. (Jonathan Herring, 2020).