R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v The Director of Public Prosecutions [2014] UKSC 38 (Supreme Court (Lord Neuberger (President), Lady Hale (Deputy President), Lords Mance, Kerr, Clarke, Wilson, Sumption, Reed and Hughes))

In the appeal brought by the widow of Tony Nicklinson, the Supreme Court has unanimously held that the question whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdom’s margin of appreciation, and is therefore a question for the United Kingdom to decide.4 Five Justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) held that the court has the constitutional authority to make a declaration that the general prohibition on assisted suicide in Section 2 Suicide Act 1961 is incompatible with Article 8. Of those five, Lord Neuberger, Lord Mance and Lord Wilson declined to grant a declaration of incompatibility in these proceedings, but Lady Hale and Lord Kerr would have done so. Four Justices (Lord Clarke, Lord Sumption, Lord Reed and Lord Hughes) concluded that the question whether the current law on assisting suicide is compatible with Article 8 involved a consideration of issues which Parliament was inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliament’s assessment.

On the second appeal, the Supreme Court unanimously allowed the DPP’s appeal against the Court of Appeal’s conclusion that his 2010 Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide” setting out his policy in relation to prosecutions under Section 2 was not sufficiently clear in relation to healthcare professionals. The Supreme Court held that the exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest. In light of the Supreme Court’s conclusion on the second appeal, a cross-appeal brought by AM did not arise.