It was arguable that the court could and should entertain a claim for a declaration relating to the common law defence of necessity where there was, inter alia, a gap in the common law even if Parliament had deliberately left it empty.

Charles J, sitting in the Queen’s Bench Division, so stated in a reserved judgment when (1) granting the claimant, Tony Nicklinson, who was suffering from “locked-in syndrome” following a stroke in 2005, permission to proceed with his claim for judicial review seeking declarations (i) that it would not be unlawful, on grounds of necessity, for the claimant’s GP or another doctor to terminate or assist the termination of the claimant’s life, (ii) further or alternatively that the current law of murder and/or assisted suicide was incompatible with the claimant’s right to respect for family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms contrary to sections 1 and 6 of the Human Rights Act 1998 in so far as it criminalised voluntary active euthanasia and/or assisted suicide; (2) refusing the claimant permission to proceed with his claim for a declaration that existing domestic law and practice failed adequately to regulate the practice of active euthanasia (both voluntary and involuntary) in breach of article 2 of the Convention; and (3) refusing the application of the defendant, the Ministry of Justice, to strike out the proceedings.

CHARLES J said that the law on the availability of necessity as a defence to murder or assisted suicide was not as fixed and clear as the Ministry of Justice was asserting. Notwithstanding cases such as Airedale NHS Trust v Bland [1993] AC 789, 896, R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345 and in particular R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, para 2 where Lord Bingham of Cornhill had pointed out that the court had the function and duty of resolving issues of law and was not a legislative body nor was it entitled to act as a moral or ethical arbiter (what his Lordship would refer to as “the constitutional approach”), it was arguable that the courts could and should entertain the claim for a declaration relating to the common law defence of necessity. That conclusion was based, inter alia, on the following: (1) where fundamental rights were in issue the constitutional approach could be displaced by the principle of legality when interpreting statutes and applying the common law: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131 and A v HM Treasury [2010] 2 AC 534; (2) there were examples of the courts introducing legal criteria and safeguards into the common law in respect of issues that did or could be said to trigger the constitutional approach: see In re F (Mental Patient: Sterilisation) [1990] AC 1; (3) it would not be undemocratic or unconstitutional for the courts to step in and fill a gap in the common law even if Parliament had deliberately left it empty: see In re F (Adult: Court’s Jurisdiction) [2001] Fam 38, 56; (4) by analogy with the approach under the Human Rights Act 1998 the courts had to evaluate the effect of and interpret legislation by reference to Convention rights (see Wilson v First County Trust (No 2) [2004] 1 AC 816, para 61) and it was for domestic courts to form a judgment on whether a Convention right had been breached: see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 23, 27 and R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] 3 WLR 836; (5) whilst in general it might be preferable for issues of broad social and moral policy to be determined by Parliament, the fact that the issues were hotly contested could be a factor in favour of the court intervening particularly if the suggested solution involved the participation of the courts on a case by case basis as had been done in cases relating to patients who lacked capacity and in In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. Whether it was arguable that the court would grant the claimant the declaratory relief sought was a different point. While it was well established that, save in exceptional circumstances, it was not appropriate for a civil court to grant a declaration as to whether conduct would amount to a criminal offence, in his Lordship’s view this was an exceptional case and if the claimant convinced the court that the common law should be developed or changed in the way he sought the civil court would go on to make the declaration. With respect to the article 8 relief sought the defendant accepted the claimant’s article 8 rights were engaged and there was a real possibility that the court would conclude that it was more appropriate to grant a declaration of incompatibility under the Human Rights Act 1998 than a declaration relating to the defence of necessity at common law, founding the conclusion that the claim for that declaration should be allowed to proceed. The application for permission to seek a declaration in relation to article 2 would be refused on the ground that, having accepted that article 2 had no direct application to him, the claimant did not have sufficient interest to permit him to seek that declaration on the basis advanced by reference to the impact of the law on others.