Monday, 13 May 2013

Questions of human mortality

The BBC 13th May Right to Die cases at Court of Appeal
reports that the Court of Appeal is about to hear the cases of Mr Paul Lamb and a man referred to only as Martin. 

According to the BBC report, Paul Lamb, from Leeds, was paralysed from the neck down in a car accident and wants a doctor to help him to die.  The 58-year-old, who has effectively taken up the case begun by the late Tony Nicklinson, is seeking a ruling that would give doctors a defence to a murder charge.

Mr Lamb argues that a doctor who killed him would have a defence of 'necessity' to a criminal charge because it was 'necessary' for the doctor to stop intolerable suffering.  Mr Lamb is therefore seeking a declaration from the court that such a defence might be available.

The other man, known only as Martin, is seeking a change to the prosecution of assisted suicide.

In August last year, the High Court turned down challenges to the law in England and Wales, saying it was for Parliament to make such decisions - Judgment and post of 6th September 2012.

A "necessity" to
break the criminal law may arise in a number of situations - e.g. A resists an attack by B and injures B (self-defence); D commits a burglary because of threats of serious physical harm from E (duress); F drives his car into a shopping precinct in order to escape from people he believes are about to attack him (R v Willer 1986 - duress of circumstances); a surgeon operates to separate "conjoined twins" in the knowledge that one of them must die as a result but the other may well be saved - A (Children)(Conjoined Twins: Medical Treatment)(No.1) 2000.

The judges have always been anxious to keep such a defence within strict limits.  In London Borough of Southwark v Williams 1971 Lord Denning said - "Necessity would open a door which no man could shut ... The plea would be an excuse for all sorts of wrongdoing.  So the courts must, for the sake of law and order, take a firm stand."    Even today Lord Denning's observation stands as a cautionary note to judges minded to extend the law.  At the heart of necessity is the idea that the individual was compelled to act in order to avoid some very serious consequence.  The problem is defining the boundaries with a sufficient degree of precision.  It is for this reason that there is good reason for judges to tread carefully in an area where, up to now, Parliament has feared to tread.

Some writers treat necessity as a distinct defence from other defences such as duress.  Nevertheless, the term necessity appears to be a "genus" embracing other situations ("species") in which, for a reason recognised as valid by the law, the defendant acted in a way which would involve what would normally be a breach of the law.

In relation to murder, the House of Lords ruled in R v Howe [1987] 1 AC 417 that duress was not a defence whether as a principal or secondary party.  A view has been expressed (Michael Allen 'Criminal Law') that their Lordships reasons for this 'verge on  the fatuous.'  Duress is not a defence to a charge of attempted murder either: R v Gotts [1992] 2 WLR 284.  If duress is a species of the genus 'necessity' then the Howe and Gotts decisions (which bind the Court of Appeal) might well present a considerable obstacle to those seeking to argue that necessity might provide a defence to a doctor.

Some previous posts touching on necessity as a defence are:

This latter post considered an extra-judicial speech by Lord Walker (Justice of the Supreme Court of the UK) which looked at a number of situations where the judges have developed the law and some where they have not.  His speech is well worth reading in full - "Developing the common law: how far is too far?" - 4th September 2012.

One of the points made by Lord Walker was that "in the field of human mortality, Parliament has shown a marked reluctance either to clarify or change the law."  For example, there were various Bills introduced by Lord Joffe in 2003, 2004 and 2005.  The case of Tony Bland was decided in the House of Lords almost 20 years ago but there has been almost no legislative activity in this sensitive area.  The Mental Capacity Act 2005 with its provision for people to make "Advance Decisions" to refuse treatment is perhaps the major exception to Parliamentary inactivity.

Lord Walker's concluding remarks are interesting since they point to the possibility that the judges might eventually have to step in so as to resolve cases even in controversial areas.  He referred to a comment of Lord Browne Wilkinson in the Bland case::

"The judges’ function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society.  If Parliament fails to act, then judge-made law will, ... , through a gradual and uncertain process, provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.”

Lord Walker then concluded his speech by saying:

" ...., I repeat that judges cannot simply say “pass”. In the absence of legislative action they must resolve justiciable issues brought before them, however much they may feel that parliamentary intervention would have been the better and the more democratic course. As Lord Bingham said in another sensitive case about childcare* it is ultimately the duty of the court to give effect to its own judgment:  “That is what it is there for . . . once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.  So sometimes, when Parliament refrains from addressing a new problem, the court has no option but to give the best judgment that it can.”

* Re Z (A Minor)(Identification: Restrictions on Publication) [1997] Fam 1, 33


R (Pretty) v DPP [2002] 1 AC 800

In 2005 there was an Assisted Dying for the Terminally Ill Bill in Parliament which did not progress into law and, in 2009, an amendment to the law put forward to the Coroners and Justice Bill was rejected in the House of Lords - (see BBC).   This Parliamentary Briefing Paper is also a valuable source of information.

In 1977 the Law Commission considered various defences - Law Com No. 83 (1977) - Report on defences of general application.   At the time, the Commission was working toward a codification of the criminal law.  The report concluded against the inclusion of a defence of necessity in the proposed criminal code and recommended the abolition of any common law defence of necessity (if one existed).

See previous post looking at Article 2 E Conv HR - A further example where Article 2 was engaged was the case of Dianne Pretty v UK (2002) 35 EHRR 1.  The ECtHR held that the right to life did not imply its opposite - a right to die.  States are not under any obligation to permit voluntary euthanasia.

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