There are many parts of our legal system which raise questions on how
far a judge should go in their role of interpreting the law and assessing the
evidence they are provided with. Assisted suicide is one of those highly
contentious topics, especially over the past century with the introduction of
the Suicide Act1
and many court cases regarding the right to die being subject to large media
attention. One of these cases being the case of Tony Nicklinson, which involves
a man who was paralysed from the neck down and diagnosed with ‘locked in
syndrome’ after suffering a stroke in 20052. Due to being paralysed he
described his life as a “living nightmare”3 and sought a declaration
to make it legal for a doctor to assist in his suicide as he was unable to do
it himself. He also sought a declaration, under section 4 of the Human Rights
Act4, that the present law
regarding assisted suicide was incompatible with article 8 of the European
Convention of Human Rights5. These declarations were
rejected due to issues I will cover later. In this essay, I will discuss the
background to the law on assisted suicide and the judgements from the case of Nicklinson
which led to many discussions on whether judges are under too strict
conventions to follow law instead of being allowed to change it when they deem
it wrong and unjust. Whilst the outcome of the case represented a small
development in the role of judges and the questionable limits they face when
dealing with cases which affect their morality, in my opinion it could have gone


Under section 2(1) of the Suicide Act it is an offence to “encourage or
assist” suicide or an attempt of suicide and if convicted the defendant could
face up to 14 years in prison (see note 1). Many people believe this is unfair,
one particular case where the judges had to decide accordingly to the statute
was the case of Diane Pretty, where a woman, suffering from motor
neurone disease, asked for a declaration from the High Court that the DPP would
not prosecute her husband if he assisted in her suicide and also that s2 of the
Suicide Act was incompatible with her convention rights6. Pretty’s plea was
rejected and then ‘leap frogged’ to the House of Lords where they also rejected
the declarations7.
Pretty tried to argue that Article 8 (ECHR n 5) shows a right to decide
how to live her life and therefore how to end it, yet the House of Lords said
that no articles of the Convention gives people right of support to end their
life. The court also argued that the ‘blanket ban’ in s2 was justifiable in
order for the state to protect vulnerable people and that s1 did not mean that
there was a right to die in English law, more that it removed the injustice of
prosecuting failed suicide attempts.

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As morally difficult as this case was for the judges, it showed that
they had to follow the legislation and by doing that respect Parliamentary
Sovereignty by not changing and creating new law. In the Crown Prosecution
Service Guidelines section 33 they say that “it is murder or manslaughter for a
person to do an act that ends the life of another, even if he or she does so on
the basis that he or she is simply complying with the wishes of the other
person concerned”8.
However, the guidelines also give factors where it is in the public interest
not to prosecute under section 45. These include: where the victim has reached
a voluntary, clear, settled and informed decision to commit suicide, the
suspect was wholly motivated by compassion and where their actions were of
reluctant encouragement or assistance due to a determined wish by the victim.
These propositions could be seen as better in a moral sense but could also
compromise the law that Parliament has set out on the subject. Article writer
Steve Foster, promotes Parliamentary Sovereignty in his article when he says
that “the general and current view of both the domestic and European Courts is
that it is Parliament who should act as the final arbiter on whether the
existing law should be changed, and if so the content of the law”9. Following this, the
judges in any courts are put in a position where they must follow the statutes
in their role as interpreting law not creating it, as was seen in the 2012 case
of Tony Nicklinson10.


Tony Nicklinson and another wanted to make it legal for doctors to
assist in their suicides whilst Martin (another party in the Nicklinson case)
argued that the DPP guidelines needed to be redrawn to make it clearer on what
types of assisting suicide would face prosecution. After these declarations
were rejected in the High Court11 Tony Nicklinson passed
away after catching pneumonia. Not content with the Court of Appeal’s decision
(declarations rejected)12, Jane Nicklinson (Tony’s
wife) appealed again to the Supreme Court. In Lord Neuberger’s judgement he
splits the case into three key issues. Regarding issue one (“Is
s2 within the UK’s margin of appreciation under article 8?”) Lord Neuberger
expresses how the Strasbourg jurisprudence does not suggest that there is a
blanket ban on assisted dying and “that in any event the provisions of s2(4)
prevent the ban in this jurisdiction being a “blanket ban” (ibid 63).


Moving on to issue two (Is it constitutionally open
to the UK courts to consider compatibility?) Lord Neuberger believes that “in
a case such as this, the national courts therefore must decide the issue for
themselves” (ibid 70) suggesting that domestic courts and judges do have the
right to determine decisions by their own judgement and not the strict limits
of the Strasbourg court or Parliament. This opinion is continued when he quotes
Lord Hoffman in re G (Adoption: unmarried couple) “the duty of domestic
courts under section 2 of the Act was to “take into account”, rather than to
regard themselves as bound by decisions of the Strasbourg court”13.
This shows the relationship between the European Court of Human Rights and
domestic courts as not as simple as many believe and suggests judges do have
flexibility to use their own knowledge and power to adjudicate cases. Lord
Neuberger finishes his discussion on this specific issue by stating that even
by acknowledging Parliamentary Sovereignty and the lack of a written
constitution it is “in principle, open to a domestic court to consider whether
s2 infringes article 8” and that the more difficult question is whether they should
or not (ibid 76).


The third issue discussed this question and Lord
Neuberger gave a whole section to the moral arguments. In paragraph 90 he says
that he finds it hard to see how a life can be seen to be sacred if it is
lawful for the person whose life it is to end it. However, he does see that
some features do “provide a degree of support for the appellants’ case.”
Interestingly in this section he sets out that just because a case involves
moral issues does not mean that the courts should “keep out” and that there have
been many pleas from judges to resolve the current issue through statutes, yet
Parliament have remained content with them. Perhaps the evidence described in
the opening statement that judges have undesirable and artificial limits comes
in paragraph 103 where Lord Neuberger says that as judges they “should be very
cautious before being prepared to hold that we should exercise our jurisdiction
under s4 of the 1998 act in the present case” and in later he recognises that
due to Parliamentary Sovereignty and democratic accountability the legislature
should have the final say (ibid 104). He follows this by stating his concluding
opinion that they could make a declaration of incompatibility, but it is
“unusual” for a court to hold that a statutory provision i.e. the Suicide Act
infringed a Convention right and that it should be Parliament to amend section
2 first.


This highlights the principle of separation of
powers which is described by author MJC Vile as three branches of the
constitution (Legislature, Judiciary and the Executive) which must be kept
separate and distinct and cannot encroach upon the functions of each other’s
We know from Dicey that no person or body recognised in the law of England has
the right to “override or set aside the legislation of Parliament”15
and therefore judges are bound by these conventions to stay away from
legislating and leave law-making and changing to Parliament as its main


This makes the view of judges on whether they
should change law very clear and one argument opposing their opinion is the
public view. For much of the public hearing of cases such as Tony Nicklinson’s
was difficult to accept, and they could not comprehend why such a decision was
made. This is still the case in today’s society following the decision in the
case of Noel Conway where two out of the three judges deemed it
“institutionally inappropriate” for the court to declare s2(1) of the Suicide
Act incompatible with Article 816.
In Rosalind English’s blog on the case, she describes how Mr Conway plans to
appeal the decision and his ‘gofundme’ page has raised over £75,000 towards his
legal fees showing the extent of public support such a controversial case can
The statement believes the limits are “artificial” and “undesirable” and I
agree with these epithets especially them being undesirable as it is clear in
cases such as Nicklinson that judges disagree with the law but believe it
is Parliament that should have to change it. They can also be seen as
artificial as judges could use certain conventions to interpret and apply acts
of Parliament such as rules of Interpretation but in some cases, refrain
themselves from doing this. Yet, sometimes they have little choice but to
intervene and create law. One way is through ‘activist law-making’18 where judges do create
new laws but only where law is developed in line with the consensus view of
society which can be seen in the case of R v R where the defendant was
convicted of marital rape after widespread agreement19. The decision still stands
and has not been changed by Parliament suggesting that judicial creativity
exists and is a legitimate method in law-making. The other method is ‘dynamic
law-making’ which could, according to Lord Devlin, endanger their reputation
for independence and impartiality as judges are going against a consensus
opinion taking a view on an issue that is controversial in society (see note
15). It could be seen as being a dynamic decision in the case of Airedale
NHS trust v Bland, where the courts granted a declaration allowing the
lawful termination of Tony Bland’s life sustaining treatment20 which was also on
the topic of euthanasia. This exhibits judicial creativity because it suggests
that there are circumstances where judges can allow a person to die if it is in
the patient’s best interest (such as when they are in a persistent vegetative
state), albeit controversial.


All these cases and issues raise the question ‘should judges
create law?’ and it is realistic to suggest that yes, they should in order to
address urgent situations and bring law into the 21st century. As
long as they are guided by well thought out principles developed and tested
over time and find a balance where they do not undermine the role of Parliament
as the supreme law-maker. Even if it cannot be conceded that judges create law
they do at least develop it, as shown in cases such as R v R (see note 19) and Bland (ibid). The reality is however, that
judges are reluctant in their position to go against Parliament and as Lord
Neuberger said in his Nicklinson judgement the courts shouldn’t “keep
out” but be “very cautious” when dealing with controversial issues. To
conclude, the legislature and the role of judges should be complementary and
but still distinct.


1  Suicide Act 1961

2 Sarah Rainey, ‘Tony Nicklinson: A
father’s fight for right to die is carried on after his death’ (The Telegraph,
21st June 2014) .

3 James Gallagher, ‘Tony Nicklinson loses High
Court right-to-die case’ (BBC news, 16th August 2012) .

4 Human Rights Act 1998, s4.

5 Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights, as
amended) (ECHR), art 8.

6 R(Pretty) v Director of
Public Prosecutions 2001 UKHL 61.

7 Pretty v United Kingdom 2002 35 EHRR 1.

8 CPS Guidelines (Policy for
Prosecutors in respect of cases of Encouraging/Assisting Suicide) 2010.

9 Steve Foster, ‘Still no
right to die: a study in the constitutional limitations of the UK judiciary’
2017 22(1) Cov LJ 57.

10 R (Nicklinson) and another v
Ministry of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC 38.

R (Nicklinson) v
Ministry of Justice 2012 EWHC 2381.

12 R (Nicklinson) v Ministry of
Justice 2013
EWCA Civ 961.

13  Re G (Adoption: Unmarried Couple) 2008
UKHL 38.

14  MJC Vile, Constitutionalism and the Separation
of Powers (2nd edn, Liberty Fund Inc 1967).

15 Albert Venn Dicey, An Introduction to
the Study of the Law of the Constitution (Elibron 1982).

16 Conway, R(on the application of) v The Secretary of State for
2017 EWCA Civ 275.

17 Rosalind English, ‘Judges once again
avoid right to die issue’ (UK Human Rights Blog, 2nd April 2017)

18  Lord Devlin “Judges and Lawmakers” 1976 MLR

19 R v R 1991 UKHL 12.

20 Airedale NHS Trust v Bland 1993 AC 789.

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