England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		27 January 2012

1. MR JUSTICE CHARLES: This is a tragic case. It raises thorny legal and ethical issues. The claimant, who has been referred to as "Martin", suffered a massive stroke three years ago at the age of 43. He is unable to speak, he is virtually unable to move. He communicates through small movements of his head and eyes, and very slowly by using a computer which can detect where on the screen he is looking. He is entirely dependant on others for every aspect of his life. He lives at home in a specially adapted room. He spends nearly all his time in bed. He is cared for by his wife and a team of full-time carers. His wife is herself a nurse. They are very close.
2. He has expressed a wish to end his life. It is said that this wish is strong, constant and reasoned. He is unable to take the necessary steps unless others take them for him. If his wife were to take such steps, it seems plain from the DPP's statement of policy, published after the decision in R (on the application of Purdy) [2010] 1 AC 345, that she would not be at risk of prosecution.
3. Martin's wife respects his autonomy and would wish to be with him to the end if steps are taken to terminate his life. But she has her own autonomy, her emotions and her principles, and she does not wish to play any part in hastening his death. Martin has no other family members whom he could or would wish to ask to do something which his wife very understandably does not feel that she is prepared to do. So he has turned to solicitors to see whether there are lawful means by which he may achieve his wish.
4. The solicitors believe that it may be possible to find someone who would be prepared, from proper motives, to assist him, but there is an obvious question whether such a person would be prosecuted for an offence under the Suicide Act 1961. The solicitors have sought an assurance from the DPP, who has been unwilling to give an advance assurance of the kind which Martin's solicitors have requested. The DPP is conscious that this is a hugely difficult area and that any decision in this case will create a precedent.
5. Martin, through his solicitors, has issued an application for judicial review of the policy contained in the DPP's policy statement. The primary ground is that it is insufficiently clear. An alternative ground, not yet fully mapped out, is that the DPP's policy fails to accord proper recognition to Martin's Article 8 rights.
6. The DPP is the primary defendant in these proceedings, but the Solicitors Regulation Authority ("SRA") and the General Medical Council ("GMC") have also been joined as defendants. If Martin succeeds in relation to the DPP, he wishes to obtain assurance that the solicitors and doctors who may help him to achieve what he says are his Article 8 rights should not thereby be exposed to disciplinary sanctions.
7. Leave to apply for judicial review has not yet been granted. We are presently at the stage at which Martin's solicitors say that they need to do much more work in order to provide the medical and other information which should properly be before the court in determining his judicial review application. Here a problem arises. The solicitors are concerned that taking such steps, albeit for the purpose of making the judicial review application, may be an offence under the 1961 Act or may give rise to disciplinary sanctions against themselves or doctors from whom they may wish to obtain expert opinions. Section 2 of the Suicide Act 1971 (As amended) provides:

"(1) A person ('D') commits an offence if —

(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) D's act was intended to encourage or assist suicide or an attempt at suicide."

Section 2(4) provides that:

"No proceedings shall be instituted for an offence under the section except by or with the consent of the DPP."

Section 2A of the Act provides:

"If D arranges for a person ('D2') to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it."

8. In these circumstances, the solicitors seek an interim declaration that they and third parties whose help they may need may lawfully obtain or provide information and advice which may be for the purpose of placing it before the court in order to determine the judicial review application.
9. The application is supported by a detailed form of draft declaration, which has gone through a number of amendments as a result of discussions between the parties. The parties are not in agreement whether such a declaration is appropriate and there remain some points of difference on the detail. I will deal first with the question whether such declaration is appropriate.
10. Nobody has challenged that Martin's solicitors are acting in this matter in good faith. In approaching the question whether such a declaration is appropriate, I begin with some general principles. A person has a right of access to the courts to establish their legal rights. That is part of the rule of law. In R (on the application of Anufrijeva) v Secretary of State for the Home Department & Anor [2004] 1 AC at paragraph 26, Lord Steyn referred to this principle as a "fundamental and constitutional principle of our legal system". It is reflected in Article 6, but the principle is of much earlier and more fundamental origin in our system of law.
11. Secondly, for that purpose a person has a right to engage a lawyer to help him to place before the court all matters which should properly be placed before the court. We are not here concerned with questions about the extent to which the state may owe a duty to an individual to enable him to obtain legal advice; we are concerned simply with the question of a person's entitlement to retain the services of a lawyer who is willing to act for him in order to present to the court the case which he wishes to advance.
12. The principle that the citizen has a right of access to a lawyer is part of the right of access to the courts and has long been recognised. It provides the foundation for the doctrine of legal professional privilege. In Anderson v Bank of British Columbia [1876] 2 Ch D 644, 649, Sir George Jessel MR said:

"As, by reason of the complexity and difficulty of our law, litigation can only be conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers."

13. More recently, in R v Derby Magistrates' Court ex parte B [1996] AC 487, 507, Lord Taylor CJ described legal professional privilege as much more than an ordinary rule of evidence but a "fundamental condition on which the administration of justice as a whole rests". There are many other authorities which recognise that unimpeded right of access to a lawyer is part of our conception of the rule of law (for example R v Home Secretary ex parte Leech No 2 [1994] QB 198, 210A; R v Home Secretary ex parte Daly [2001] 2 AC 532, 537; and RS v Plymouth City Council [2002] 1 WLR 2583 [43]). Of course, a person may not instruct a lawyer to assist him to commit a crime or other dishonest conduct, but there is a world of difference between an individual seeking to involve a lawyer in carrying out a crime and involving a lawyer in order to place openly and honestly before the court the material on which the court may decide whether what he seeks to do is lawful.
14. It follows from those two fundamental propositions that for a professional person to be exposed either to a criminal or to a disciplinary sanction for providing assistance or information for a purpose of enabling the court to determine any question of law would conflict with the constitutional right of the party in whose case the information or advice is being provided. It is well recognised that all legislation, particularly criminal legislation, has to be interpreted in a way which complies with fundamental constitutional principles. Read literally, obtaining information of the kind which the solicitors wish to obtain for the purposes of the judicial review application, and passing that information to Martin, could ultimately be capable of assisting him to commit suicide if his application were successful. But to adopt a construction of section 2 of the Act which thereby made the solicitors guilty of a criminal offence by collecting such information for the purpose of placing it before the court would conflict with the constitutional principles to which I have referred. That cannot be the proper way of construing the section.
15. In his skeleton argument, Mr Havers QC has referred to the decision of the Court of Appeal in the case of R v Stringer [2011] EWCA Crim 1396, [2011] 2 Cr App R 24, a case on secondary liability in murder, where the court said:

"There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P's act as done with D's encouragement or assistance."

16. It would be manifestly unjust to regard an act done for the purpose of enabling the court to determine Martin's rights to be categorised of itself as an act capable of encouraging or assisting the suicide within the meaning of section 2(1). The circumstances in which such an application are made are such that this step would be too remote from what might happen in the event of the application succeeding as to make the solicitors exposed to criminal liability. Any alternative construction would produce the just and absurd consequence that Martin would be unable to place before the court the material that he needs in order to determine what are his legal rights.
17. None of these principles, important as they are, have been the subject of any challenge on the present application. However, I have referred to them because they provide the necessary backdrop to the application that is made. The solicitors making the application wish to have protection for themselves and for the doctors whom they intend to approach, partly for the protection of themselves and the doctors, but ultimately for the protection of Martin so that he can obtain the advice and information which he needs to be able to have his application properly presented.
18. Because this is a difficult and thorny area and the positions taken by the various parties in correspondence have changed from time to time, it is submitted by Mr Havers that it is right and proper that the position should be made clear in a declaration by the court. The principal objection comes from the SRA, represented by Mr Dutton QC. He submitted that any declaration of this kind is unnecessary because it would merely state the obvious, and undesirable because it could set a bad precedent.
19. There are two difficulties to my mind about the obviousness argument. One difficulty emerges from the correspondence itself. On 21 March 2011, the solicitors wrote a lengthy letter to the SRA outlining the steps which they were intending to make and seeking assurance that this would not expose them to disciplinary sanctions. They sent out in that letter a request for confirmation at the very least that, if the SRA was unable to give the broad assurance that they wished, and the solicitors therefore brought a judicial review application for Martin, that they might take certain steps for the purposes of that application without fear of disciplinary sanction. They said:

"The steps we have in mind are:

(a) by Martin's lawyers, the carrying out of research, including communicating with others (including individuals and organisations who might be able to help Martin, and including the sending of documents about Martin to people), the preparation of witness statements, the instruction of experts, and all steps incidental to the making of a fully prepared court application that optimises Martin's chances of success;

(b) by any healthcare professionals instructed by Martin's lawyers, the accepting of and acting upon instructions to assess Martin, to advise him about the options open to him, and the writing of reports; and

(c) by healthcare professionals and services currently or previously involved in Martin's care, the provision of information, reports and copies of their records to Martin's lawyers."

20. They are asked specifically for confirmation that those steps, for the purposes of preparing litigation, would not be of concern to the SRA.
21. The reply from the SRA, dated 1 April 2011, was short. It stated that the SRA considered that the work which the solicitors set out in their letter would fall within section 2(1) of the Act. It may be that in that letter they were concentrating on the broad issue and not on the narrow issue whether the solicitors might properly take the steps which I have just set out for the purposes of a judicial review application. That they may not have concentrated on the second part of the question by that stage appears further from a letter from the SRA dated 17 May 2011, in which they wrote:

"A question has been raised in correspondence as to whether the preparation entailed in this application to the DPP would in itself attract disciplinary action. My understanding is that you will be attending to those matters marked (a) at paragraph 26 of your letter in readiness for an application which is merely seeking clarification of the DPP on behalf of your client. I do not feel that seeking such clarification of the DPP policy would raise any public interest issue or concern as to misconduct and is unlikely to attract any disciplinary proceedings."

22. That appeared to be an indication that the SRA did not think there would be a problem about the solicitors taking the steps outlined in the first of the three sub-paragraphs for the purposes of the JR application, but was silent as to the second and third.
23. As I said, looking at the matter in general terms, the position that the SRA has adopted has not been entirely clear and it is understandable that the solicitors want the matter to be made clear by way of a declaration. Secondly and importantly, what may seem obvious to lawyers practising in this area may not be so obvious to a doctor who is asked to provide a medical report on Martin for the purposes of such an application. It is understandable that he would wish to know what is his position, not as a matter of ambiguity or debate or lengthy reasoned legal advice which might be controversial, but in the form of a simple statement of the court.
24. Mr Dutton's other concern was that this would set a bad precedent. The SRA was concerned that in some other case other solicitors might be encouraged by a declaration being granted in this case to place before some other court privileged client material in support of an application for a similar declaration in circumstances where they ought not to be disclosing such privileged information. I am not persuaded that that is a factor which should influence our decision whether for the purposes of this litigation an interim declaration is appropriate.
25. The sheer volume of correspondence which has passed on this subject between the parties persuades me that it is time that there should be a little clarity in the matter and that it is appropriate that some form of declaration should be given. Declarations are discretionary and should be given only when necessary. This is an exceptional case, firstly because of the exceptional nature of the case and the issues to which it gives rise, and secondly because what is being sought here is a declaration specifically for the purpose, and only for the purpose, of enabling the court itself to be presented with the materials that it needs in order to be able to determine the matter. For those reasons, I am persuaded that a declaration for the broad purpose of stating that the solicitors may obtain information from third parties and from appropriate experts for the purposes of placing material before the court and that third parties may co-operate in so doing without the people involved acting in any way unlawfully is positively in the interests of justice and the proper disposal of this case.
26. I turn from the general question to the particular issue. The proposed form of declaration has an introductory paragraph in general terms. The parties are not entirely agreed on the form which it should take. Various amendments have been canvassed in the course of argument. I do not think that time is best served by trying to decide a short point on the best exact words now; I think a better course is for the parties, following this judgment, to spend a little time together trying, if possible, to produce an agreed version, but if they cannot do so they should put forward alternative versions and the court can decide on the best form of wording. That can be done on paper.
27. The order goes on to list a number of particular steps which it is envisaged that the declaration should state can lawfully be taken. Happily those are now largely uncontentious, but there are three particular points which have given rise to argument. The claimant's solicitors want the declaration to include that they may: (1) arrange if so requested for Martin to join Dignitas; (2) communicate with Dignitas; and (3) take steps to identify one or more people or bodies who may be willing to assist Martin in ending his life and taking statements from them.
28. I am not persuaded that it is currently necessary for the purposes of just determination of this claim that Martin should join Dignitas. The court has been taken to a witness statement which explains how Dignitas operates. The plan is for the claimant to join Dignitas and then a whole series of steps will be taken, including consideration of his case by a medical expert or experts appointed by Dignitas with a view to Dignitas giving either a provisional green light or not. It does not seem to me that any of that is necessary at this stage. There is no shortage of information publicly available about the nature of Dignitas as an organisation. So I would not include the first of the disputed paragraphs.
29. I see no objection to the solicitors communicating with Dignitas in the way that anybody else could communicate with Dignitas to provide general information about their service, much of which would be obtainable from their website in any event. So I see nothing harmful in the second of the three disputed paragraphs.
30. That leaves the question whether the solicitors should be able to take steps to identify one or more people or bodies who might be willing to assist Martin. Mr McGuinness QC, on behalf of the DPP, submitted that this was simply irrelevant and unnecessary for the purpose of adjudicating on the broad challenge where the DPP's policy statement is deficient, because it fails to address the position of someone in Martin's situation whose immediate family are not able or willing to help him.
31. There is, however, an alternative part of Martin's claim, which is that in his particular circumstances his rights of autonomy under Article 8 mandate that he should be able to have the assistance of others to terminate his life. Mr Havers submits that it is very likely in examining that question that the court would wish to have information about what is proposed, and that seems to me likely to be right. Assistance by helpers is an extremely broad phrase and I think it is inevitable, when this case comes to be looked at in closer detail, that the court will want to have a real understanding of what it is that Martin wants other people to do, what sort of person is going to be providing, and what sort of person is going to be providing what sort of help. It seems to me therefore likely to be helpful to the proper disposal of this case that the solicitors should not be precluded from taking such steps when preparing the application.
32. In conclusion, therefore, I would grant a declaration as sought, but would leave the precise form of the declaration to be determined, preferably by agreement, but, if not, once we have had further written submissions on the outstanding detail points.
33. LORD JUSTICE TOULSON: I agree, and I would only add that the reasoning given in my Lord's judgment relating to communications by the solicitors with doctors for the defined purposes applies to the other communications covered by the proposed declaration.
34. MR JUSTICE CHARLES: I am grateful to my Lord for his supplementary comment.
35. MR HAVERS: My Lord, does your Lordship want to say anything about case management?
36. LORD JUSTICE TOULSON: I think I have said all I really want to say about that. Was that a polite request whether I got off my chest all I thought needed to be said, or was it you thought there was some omission?
37. MR HAVERS: We had invited your Lordships to consider whether to make the directions that I showed your Lordships.
38. LORD JUSTICE TOULSON: I think the directions are fine as far as they go, except we are not going to order expedition. But I think the directions ought to embrace what I raised earlier about the preparation of documents.
39. MR HAVERS: Yes. We will include everything, including the timescale for service of the amended claim form and time for acknowledgements of service to that, and I think that some of the defendants would like longer than 21 days. We can discuss that between us.
40. LORD JUSTICE TOULSON: Frankly, it is better to give people a longer time for them to get out what they want to say and get the documents in proper shape than to get something which is followed a month later by an amendment.
41. I do not think we can reserve the case to anybody but in fact, and this is really a note for the court, Charles J has now read these papers in detail and there would be some obvious sense if the matter is referred to him on a leave application. I think when you put your draft order in, we will have a word with the court office and it may be that we will put something in to the effect that this case should be put before him. Anything else?
42. MR HAVERS: My Lord, yes, the costs of today. I respectfully suggest costs in the case, save in respect of the SRA who opposed the grant of a declaration and lost. So I ask for my costs against the SRA, but otherwise costs in the case.
43. MR DUTTON: My Lord, costs in the case, no problem. We resist the costs of the application against us for today in respect of the declaration. We had, in fact, co-operated with the elements of the aspects of the declaration. Our concern was as to necessity, and your Lordship had ruled on that, but we submit that should go with the case. Furthermore, all of the costs of us coming here today were going to be incurred in any event because we would all have been here today.
44. LORD JUSTICE TOULSON: What is the position about the claimant's funding?
45. MR HAVERS: We are publicly funded, legal aid.
46. LORD JUSTICE TOULSON: I think you had to come for the declaration in any event. I think this is, on balance, one where we would say costs in the case.
47. We are very grateful to the parties. When you have finally got your papers in proper order, it would be worthwhile getting in touch with the court office. What we want really is for you to clear out everything that is there and provide the court with one nice set of bundles.
48. MR HAVERS: We will do.