1

IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT

CO/1319/2017 B E T W E E N:

THE QUEEN (on the application of)

OMID T. Claimant

v.

THE SECRETARY OF STATE FOR JUSTICE Defendant

CLAIMANT’S SKELETON ON PRELIMINARY ISSUE HEARING 7-8 MARCH 2018

A. Introduction

1. At a directions hearing before a Divisional Court (the President of the QBD and Whipple

J) on 21 November 2017 the Claimant sought leave to cross-examine the Defendant’s

primary expert witness, Baroness Ilora Finlay. Judgment was reserved and by a judgment

dated 7 December 2017 ([2017] EWHC 3181 (Admin)) the Divisional Court adjourned

the application for cross-examination pending determination of a preliminary issue,

namely (see Court Order of 20 December 2017) (the ‘Preliminary Issue’):

ls it appropriate and necessary in this case for the Court to hear first-hand evidence with cross-examination to seek to determine the mixed ethical, moral and social policy issues that underlie whether Parliament's prohibition on assisted suicide in s 2(1) Suicide Act 1961 is a justified interference with the Claimant's rights in this case?

2. In this Skeleton the term ‘legislative facts’ (also known as ‘constitutional facts’) will be

used instead of the ‘mixed ethical, moral and social policy issues’ referred to in the

Preliminary Issue, for reasons explained at para 39-40 below.

3. In giving its judgment the Divisional Court also observed that, if the Preliminary Issue is

answered in the Claimant’s favour ‘the Court is likely … to consider transferring the case

out of the Administrative Court into the Queen’s Bench Division, for hearing before a

single first instance judge’ (para 43). The Court also indicated that it would be helpful

for the Claimant to ‘focus much more closely on the specific areas of dispute where cross-

2

examination would (on his case) assist in resolving this case’ (para 44). The Claimant

sets out the specific areas of dispute at Section F, below.

4. The Preliminary Issue has been listed for a 2 day hearing on 7-8 March 2018.

B. The Claimant

5. The Claimant, Omid T (‘the Claimant’ or Omid), is in the advanced stages of multiple

systems atrophy, a rare and devastating neurological disorder affecting the body's

involuntary (autonomic) functions, including blood pressure, breathing, bladder function

and muscle control. He has been effectively bedbound for the last two years; he is unable

to attend to his personal needs; his speech is extremely difficult to comprehend and he

has great difficulty communicating; he finds it very difficult to write, and his writing is

difficult to decipher; his prognosis is a further gradual deterioration with death likely

within 6 months to 2 years. Due to the unbearable suffering caused by his deteriorating

physical condition, which cannot be cured or alleviated, life has become intolerable to

him. He wishes to end his life and has been assessed as having capacity to do so. If and

when he has the available funds he will travel to Lifecircle in Switzerland to end his life,

although this might be earlier than he would otherwise choose if the law in the UK

enabled him to have an assisted suicide in this jurisdiction.

C. The nature of Omid’s claim

6. Omid has brought this judicial review claim seeking a declaration of incompatibility in

relation to the blanket ban on assisted suicide in s 2(1) Suicide Act 1961 which prevents

him from obtaining the assistance he needs to end his life.

7. The Claimant’s claim is that s 2(1) breaches his rights under Articles 2 and 8 of the

Convention as protected by the Human Rights Act 1998, in so far as it prevents a person

from obtaining assistance in suicide in the following circumstances (adapted from para

[127] of the decision of the Canadian Supreme Court in Carter v AG of Canada [2015]

SCC 5):

(a) an adult patient with capacity who is free from coercion and undue influence; and (b) who has made a voluntary, clear, settled and informed decision to receive assistance to die; and (c) has a grievous and irremediable physical medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

3

8. Omid restricts his claim to persons with a physical, rather than a psychiatric or

psychological, medical condition.

9. Omid submits that any potential risks to vulnerable people that may be caused by a

relaxation of the law can be met by introducing the following safeguards:

(a) The request for assistance must be adequately evidenced and witnessed, for example it must be in writing or by audio or video recording; (b) Two medical practitioners, who are independent of each other, one of whom with special expertise in the assessment of mental capacity, must be satisfied that the eligibility criteria outlined above are satisfied; (c) The assistance in suicide must be supervised by a medical practitioner; and (d) The circumstances of the death must be reported to a suitable monitoring body with powers to monitor, to investigate and to recommend criminal proceedings where the eligibility criteria or safeguards have not been met and a duty to publish an annual report on the cases reported to it, decisions reached and the reasons for those decisions.

10. In addition, Omid proposes a further safeguard that a High Court judge must also be

satisfied of the eligibility criteria set out at para 6 above on the basis of evidence from

the two medical practitioners referred to at para 9. This would mirror the procedure for

seeking declaratory relief already available in the Family Division in cases involving the

withdrawal or withholding of life-sustaining treatment, hydration or nutrition.

11. Omid accepts that any change in the law, including any regime of safeguards, can only

be introduced by legislation. It will therefore be open to Parliament to introduce laws to

meet other perceived risks of any relaxation of the prohibition on assisted suicide. In

particular, the Defendant has put forward evidence that to permit assisted suicide will

undermine the provision of palliative care in the UK, which is a world leader in this area.

Omid disputes that legalisation will have this effect but observes that this concern could

be met by the introduction of a statutory right to end-of-life care, as was done in Belgium

and Luxembourg when the right to assisted dying was introduced in 2002 and 2009,

respectively. These countries (along with the Netherlands) are now European leaders in

the provision of palliative care (with Luxembourg in first place, the UK in second,

Belgium third and the Netherlands fourth1).

1 Woitha et al., ‘Ranking of Palliative Care Development in the Countries of the European Union’, Journal of Pain and Symptom Management, September 2016, Vol. 52 No. 3 p. 320

4

D. Procedural history of Omid’s case

12. The Claimant issued his claim on 10 March 2017 and was granted permission to apply

for judicial review by Supperstone J on 22 May 2017. The judge refused his application

to be heard alongside the case of Conway but gave directions for the future conduct of

his case. The Claimant was ordered to file and serve the evidence upon which he relies

by 24 July 2017 and the Defendant was ordered to serve his evidence in response, along

with his detailed grounds, within 14 days of 1 October or the date of judgment in the

Conway case, whichever is the later. The Claimant duly served his evidence on 24 July

(summarised in the Annex, below). The Defendant served his grounds and evidence on

2 November 2017, with the exhibits served thereafter, including an expert report from

Baroness Ilora Finlay which purports to set out a justification for the absolute ban on

assisted suicide and to rebut the evidence relied upon by Omid that demonstrates the

absolute ban is not justified. At the hearing on 21 November 2017 the Claimant sought

an order permitting him to cross-examine Baroness Finlay; the application was adjourned

pending determination of the Preliminary Issue. Once the Preliminary Issue has been

determined, the Claimant intends to file evidence to rebut the Defendant’s expert

evidence.

E. Omid’s approach to the resolution of the claim: the use of evidence with cross-examination

13. Omid has obtained reports from a number of expert witnesses refuting the evidential basis

for the underlying justification for an absolute ban on assisted suicide, all of whom (apart

from Prof. Heleen Weyers) gave evidence in support of the successful appellants in the

Carter case (summarised in the Annex). The evidence of Profs. Battin, McLean,

Bernheim, Deliens, Ganzini, Owens, Starks and Lewis was accepted by Smith J, the trial

judge in the Carter case, who, it should be added, did not accept the evidence of Baroness

Finlay who gave evidence for the Canadian government and now gives evidence for the

Defendant. Only Profs. Ganzini and Lewis also prepared reports in Mr. Conway’s case

and neither gave evidence. Prof. Lewis gives evidence in Omid’s case on a much wider

range of issues than she did in the Conway case.

14. These witnesses give evidence in support of Omid’s case relating to the ‘legislative facts’

that are central to the determination of whether the absolute prohibition on assisted

suicide is proportionate:

5

14.1. that there is no a priori moral or ethical basis for the current blanket ban on

assisted suicide based on the sanctity of life;

14.2. that persons can make a competent and rational choice to end their lives, and that

whether their decision is a competent one and free of any undue pressure can be

reliably assessed;

14.3. the empirical evidence from experts within the jurisdictions where the practice is

legal, notably Oregon, the Netherlands and Belgium, show there is no so-called

‘slippery slope’ towards involuntary euthanasia in those jurisdictions, and that the

opposite is the case;

14.4. that there is no appreciable risk to vulnerable groups from a carefully controlled

legal regime;

14.5. that legalisation improves access to palliative care rather than the contrary;

14.6. that patient confidence in the medical profession is enhanced not undermined in

permissive jurisdiction;

14.7. that the legal safeguards, both substantive and procedural, in those jurisdictions

have become enhanced, not eroded, over time; and

14.8. evidence as to the harm that is caused by the current prohibition on assisted

suicide in the United Kingdom, including the scale of the practice of euthanasia

and assisted suicide notwithstanding the practice is illegal and the risk of persons

taking their lives earlier than they would otherwise wish.

15. This evidence is directly relevant to the proportionality exercise at the heart of Omid’s

Article 8 claim. In addition, Omid has filed evidence as to his own condition, how it

causes him unbearable suffering, the legal and practical mechanisms by which he

proposes his life might be ended with assistance, and how the law disproportionately

affects other people in the same or similar situation.

F. The factual matters upon which cross-examination is sought

16. The Claimant seeks to cross-examine Baroness Ilora Finlay in relation to the underlying

legislative facts relevant to the determination of the compatibility of the current ban on

6

assisted suicide (and any other witnesses that the Defendant may, in due course, seek to

rely upon in relation to those matters), in particular (applying the Oakes criteria, see

below para 37):

16.1. the harmful impact of the absolute ban upon people in Omid’s situation and the

extent of the interference with their rights of autonomy and bodily integrity;

16.2. whether there is a rational connection between the absolute ban in s 2(1) and the

identified aims of protecting vulnerable people and the protection of morals;

16.3. whether a less intrusive measure than an absolute ban (such as the scheme of

safeguards relied upon by Omid) would still meet those aims without

unacceptably comprising them; and

16.4. whether an absolute ban strikes a fair and proportionate balance between the

interference with rights of people in Omid’s situation and any risks that might

otherwise exist.

17. Put simply, can any identified risks associated with legalising assisted suicide be

adequately met by the system of safeguards relied upon by Omid?

18. The facts that underpin this question relate to the validity of the costs, risks and benefits

upon which, on the one hand, the Defendant relies for maintaining the absolute

prohibition on assisting suicide and, on the other, the Claimant relies for relaxing the

absolute prohibition on assisting suicide. Only by identifying these legislative facts can

any balance be struck between the two. Expert evidence has been adduced from both

sides to address these, with particular reference to empirical evidence available from

more permissive jurisdictions such as the Netherlands, Belgium and Oregon. The costs,

risks and benefits fall into the following categories:

18.1. The harmful impact caused by the absolute ban in s 2(1) Suicide Act upon the

autonomy, physical and psychological integrity of persons, like Omid, who suffer

from incurable conditions that cannot be palliated and who are physically unable

to end, and prevented by s 2(1) from obtaining assistance in ending, their lives at

a time and in the manner of their choosing.

7

18.2. Whether vulnerable people are more or less at risk of premature death in a

permissive or a prohibitive jurisdiction (like the UK), in particular:

the risks of premature death of persons who have not made a competent

choice (so-called ‘life-ending acts without explicit authorisation’ (LAWER)

in both permissive and prohibitive jurisdictions;

the risks of premature death from end of life practices that are currently

lawful in prohibitive jurisdictions such as the UK, in particular ‘terminal

sedation’ and the withdrawal of life-sustaining treatment, including the

number of people who are or may be affected;

the risks that persons in Omid’s situation wishing to end their life do so earlier

than they would if assisted suicide was lawful, either by taking their lives

while physically able to do so or by travelling abroad for an assisted death

earlier than they would otherwise choose.

18.3. The number of people who are likely to be affected by the Claimant’s proposals.

18.4. Whether there is any causative link between the availability of palliative care and

a jurisdiction being more permissive or prohibitive.

18.5. Whether a more permissive approach is likely to have a negative impact on

doctor-patient relationships and public trust in the public health system.

18.6. Whether a more permissive approach is likely to have a negative impact upon the

ethical principle of the sanctity of life, with particular emphasis on the ethical

distinctions between end of life practices that are currently lawful and those that

are unlawful.

18.7. Whether a more permissive approach is likely to have a beneficial effect of

improved openness in end-of-life discussions in permissive jurisdictions and how

this may contribute in a positive way to the patient’s experience of dying.

18.8. Whether a more permissive approach is likely to have a beneficial effect of

improved regulation and transparency of all end of life decision-making.

8

18.9. The nature and reliability of the safeguards proposed by the Claimant and whether

these would meet the risks outlined in para 18.2 above, with particular reference

to the operation of the safeguards in jurisdictions where assisted suicide is lawful

and empirical evidence as to whether and to what extent those risks eventuate in

those jurisdictions.

19. Baroness Finlay gives evidence that is directly relevant to most, if not all, of these issues.

See, for example, her conclusions in her Expert Report of 1 November 2017 at paras 29

(vulnerability [3199]); 41 (Dutch experience [3204]); 43-45 (suicide rates in permissive

jurisdictions) [3205]; 46, 48, 49 (inadequacy of safeguards in permissive jurisdictions)

[3206]; 54 (inadequate audit systems) [3209]; 69 (negative impact on palliative care in

permissive jurisdictions) [3215], 78 [3219]; 88 (in appropriateness of ‘suffering’ as a

criteria for eligibility) [3221]; 113 (practice of terminal sedation in other countries)

[3229]; 119 (practice of terminal sedation in UK) [3232]; 126 (doctor-patient

conversations) [3237]; 132-135 (whether other, lawful end-of-life decisions are

comparable with assisted suicide) [3239]; 152 (capacity) [3248].

20. The Claimant has identified the issues upon which he wishes to cross-examine Prof.

Finlay with sufficient precision. He observes that the issues identified above were

precisely the ‘legislative facts’ upon which Smith J, the trial judge in the Carter v Canada

case, heard evidence and made findings, from which she concluded that the ban on

assisted suicide failed the proportionality test in s 1 of the Canadian Charter (the ‘Oakes

test’). These findings of fact, and her conclusion in relation to proportionality, were

upheld by the Supreme Court at paras 103-123 of its judgment.

G. The relevance of Carter v Canada

21. Omid’s approach to this claim has much in common, both substantively and procedurally,

with the Canadian case of Carter v AG of Canada in which Smith J. in the Supreme Court

of British Colombia [2012] BCSC 886 granted a declaration that the Canadian ban on

physician assisted suicide and euthanasia breached s 7 and 15 of the Canadian Charter of

Fundamental Rights and Freedoms. Her judgment was upheld by the Canadian Supreme

Court on 15 October 2015 [2015] SCC 5. Omid will submit (contrary to the Divisional

Court’s judgment in Conway, para 123) that the decision in Carter is of strong persuasive

value both as to outcome and as to the approach the UK Courts should take in assessing

9

the compatibility of s 2(1), particularly in its approach to the hearing and assessment of

relevant evidence. That is because the approach of the UK Courts to the assessment of

proportionality has always been informed by that of the Canadian Supreme Court (see

para 37, 55, below).

22. Omid’s case differs from Carter in two material respects; first, he is restricting his claim

to persons suffering from a physical medical condition (above, para 8), whereas in Carter

those with psychological conditions were included; and, second, he is not seeking

voluntary euthanasia, so his claim affects a narrower class of persons. Accordingly he

does not seek any declaration that the common law offence of murder is incompatible

with his rights. His case is that assistance in suicide may still be given even when his

condition has deteriorated to the point he cannot physically self-administer a lethal dose

of medication by means of technology of the kind described in the witness statement of

Dr. Phillip Nitschke (see also the Nicklinson judgment, at para 4, 110, 128).

23. The justices of the Supreme Court in Nicklinson were aware of the decision of Smith J

(although the Supreme Court had yet to deliver its judgment). A majority of the Supreme

Court ruled that the proportionality of the absolute ban on assisted suicide could only be

determined by reference to first hand evidence that is tested by cross-examination: see

further, paras 30, below. That is the approach that Omid has taken in this claim; in this

respect his claim, among others2, his claim differs from the case of R (Conway) v MOJ

[2017] EWHC 2447 (Admin) and which is currently awaiting an appeal in the Court of

Appeal. In particular, in Conway no application was made to cross examine the

Defendant’s experts.

H. Submissions on the Preliminary Issue

(1) Summary submissions

24. At the heart of Omid’s case is the submission that the interference with his rights under

Articles 2 and 8 of the European Convention on Human Rights is disproportionate. The

Court must, in order to properly determine the substance of his challenge, be permitted

to examine the objectives that are said by the Defendant to justify the interference with

his rights and whether the absolute ban on assisted suicide is a proportionate means of

2 As detailed in the Claimant’s Submissions dated 17 November 2017, at paras 25ff

10

achieving those objectives by reference to the Oakes criteria (see para 16, above). In

most cases the Court can resolve these issues on the basis of written evidence and

submissions, but in this case justice requires cross-examination of the evidence that

founds the Defendant’s justification. That follows directly from the judgment in

Nicklinson and as a matter of principle.

(2) General principles: cross-examination in judicial review proceedings

25. The Court’s jurisdiction to order cross-examination in judicial review claims, although

not commonly exercised, is well-established, particularly in human rights cases (R

(Jedwell) v Denbighshire CC (CA) [2016] P.T.S.R. 715, paras 50-55; Al Sweady [2010]

H.R.L.R. 2, paras 15-19. As Stanley Burnton LJ said in R (Bancoult) v Secretary of State

for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin), para 12, approved

in R (Jedwell) v Denbighshire CC (CA) [2016] P.T.S.R. 715, para 53:

… cross-examination should be permitted ‘if cross-examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly’.

26. If cross-examination is not ordered the Court may be obliged to accept the Defendant’s

evidence on the critical issues in Section F. As Stanley Burnton (then) J observed in R

(S) v Airedale NHS Trust [2003] MHLR 63, para 18:

18. It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.

27. That is the case even where there is a conflict of evidence: see Al Sweady, para 17, citing

R. v Board of Visitors of Hull Prison Ex p. St Germain (No.2) [1979] 1 W.L.R. 1401

The difficulty confronting us was that, as is well known, the usual procedure in judicial review cases is first for there to be no oral evidence and secondly, insofar as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant (see, for example, R. v Board of Visitors of Hull Prison Ex p. St Germain (No.2) [1979] 1 W.L.R. 1401 at 1410H, per Geoffrey Lane L.J. (as he then was)).

11

28. In a HRA claim, however, once an interference with a Convention right has been

established this presumption is shifted and it is for the State to justify the interference.

The claimant must in those circumstances have the opportunity to properly test the

evidence put forward by the defendant.

29. In the present case, the Claimant is also seeking to distinguish his case from that of Mr.

Conway, who did not seek to test by way of cross-examination the justifications put

forward by the Secretary of State, and whose claim failed. While there are a number of

differences between the two cases3, and it is open to a Court to reach a different

conclusion on the compatibility of legislation on the basis of different facts4, an order for

cross-examination will be likely to have a ‘very significant impact on the outcome of the

claim’, as the Divisional Court recognised when adjourning the application for cross-

examination:

44. Having said that, we accept Mr Bowen’s submission that the outcome of this application is likely to have a very significant impact on the outcome of the claim. If Mr Bowen is not able to cross-examine the witnesses proffered by the Secretary of State, his case will necessarily be limited to submissions on the written evidence, including the Secretary of State’s expert evidence which will be unchallenged. Conway stands as an unhelpful precedent to him, and unless it is reversed on appeal, he would seek to distinguish it. There are, of course, differences between this case, and Mr Conway’s case: the particular circumstances of each claimant are different, and the scope of the legal argument is different, not least because this case involves a challenge on grounds of Art. 2 as well as Art. 8. But, as Mr Bowen recognises, there are many similarities too. By contrast, if cross-examination is permitted, then this case takes on an entirely different shape and a range of arguments are likely to open up on the evidence.

(3) The approach to evidence taken by the Supreme Court in Nicklinson

30. It is Omid’s case that the Supreme Court in Nicklinson has already decided that the

proportionality of the absolute prohibition on assisted suicide can only be determined by

reference to first hand evidence that is tested by cross-examination, including in relation

to the matters listed at para 16, above. The Claimant submits that this conclusion

3 See fn2 4 Nicklinson, para 174 per Lord Mance: ‘… it is in principle open to claimants in the position of the claimants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence. … Proportionality is here a judgment reached in the light of evidence, so that it is capable of being relitigated in this way, although courts should no doubt discourage such relitigation in the absence of fresh and significantly different evidence.’

12

followed naturally from the Supreme Court’s conclusion (by a majority of 5-4) that the

Courts were institutionally competent to determine the proportionality of the absolute

ban on assisted suicide. The majority would have gone on to decide the ultimate question

in Nicklinson if it had not been for the fact that (a) Parliament was shortly due to

reconsider the issue in the Assisted Dying Bill; (b) the evidence was not sufficient for the

Court to determine proportionality. Now that Parliament has rejected the Assisted Dying

Bill the first impediment to a fresh reconsideration of the issue on its merits has fallen

away (as the Divisional Court rightly acknowledged in Conway, at para 90)5. The

Claimant submits that the fresh evidence is now available which can overcome the

second hurdle. Consistent with the views of the Supreme Court, this should now be

forensically tested in order for the Court to reach any conclusions on the merits of the

claim.

31. The need for fresh evidence, tested by cross-examination, was articulated most clearly

by Lord Mance, at paras 174-182, who concluded this part of his judgment in these terms:

182 It is in my view clear from the judgment at first instance in the Carter case 2012 BCSC 886 and from even the superficial examination of the evidence which the claimants now in effect invite as their primary case (para 175 above) that it would be impossible for this court to arrive at any reliable conclusion about the validity of any risks involved in relaxing the absolute prohibition on assisting suicide, or (which is surely another side of the same coin) the nature or reliability of any safeguards which might accompany and make possible such a relaxation, without detailed examination of first-hand evidence, accompanied by cross-examination. This has not occurred in this case … .

32. Lord Neuberger, at para 120, said this:

120 Before we could uphold the contention that section 2 infringed the article 8 rights of Applicants, we would in my view have to have been satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State (particularly the concern to protect the weak and vulnerable) were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not consider that we can be properly confident that we have the evidence or that the courts below or the Secretary of State have had a proper opportunity to address the issue, in order to determine whether

5 The Claimant also observes that Bill would only have applied to terminally ill persons with fewer than six months left to live, so no consideration has been given to those in his situation

13

requirement (c) or (d) in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621 is satisfied.

33. At para 121 Lord Neuberger agreed with paras 178-182 of Lord Mance’s speech and he

went on, at para 128, to set out the kinds of matters that would need to be addressed in

any future challenge by way of evidence:

128 Thus, it appears to me that it would be necessary to consider purely factual matters, such as whether devices such as Dr Nitschke’s machine are reliable, whether they could be activated by Applicants, and whether it would be feasible to use them. There would also be mixed factual and policy issues to consider, such as whether appropriate safeguards (including by whom and on what basis the decision to permit an assisted suicide should be made) could be developed to protect both those who firmly wish to die and those who do not, whether Applicants could be fairly identified and regulated as a self-contained collection of people, whether there would be implications for people who were not Applicants but wished to be assisted in killing themselves, and if so what the implications were, and how they should be dealt with.

34. Lord Wilson agreed with Lord Neuberger’s speech (paras 196-197, 201-202). Lord

Sumption at para 224 referred to the ‘obvious difficulties about reaching a concluded

view on untested, incomplete and second-hand material’ of the kind before the Court.

Lord Hughes (para 287), Lord Clarke (para 290) and Lord Reed (294) agreed with Lord

Sumption. Although these four were in the minority in deciding that only Parliament

should decide the compatibility of s 2(1) as a matter of principle, Lord Sumption’s

observation at para 224 (with which Lords Hughes, Clarke and Reed agreed) may be

taken as support for the view that, if the Courts were to determine the compatibility of s

2(1) (which in his view, they should not), it should be done on the basis of complete,

first-hand material that has been tested by cross-examination.

35. Accordingly, seven of the nine justices may be said to have supported the position that

any re-litigation of the issue of compatibility of s 2(1) should only be done on the basis

of primary evidence that may be tested by way of cross-examination. Baroness Hale and

Lord Kerr were satisfied that there was a breach without the need for further evidence:

Baroness Hale, at para 320, and Lord Kerr, para 351 considered it was for the Defendant

to produce evidence justifying the interference, and had failed to do so.

14

(4) The need for evidence in Human Rights Act compatibility cases

36. The Claimant submits the Supreme Court’s approach is consistent with principle and that

fact-finding, including of ‘legislative facts’ such as those in Section F (although that term

was not used by the Supreme Court), is essential to the proper discharge of the Courts’

statutory and constitutional functions under the HRA.

37. In assessing the HRA compatibility of any public law decision, including a legislative

provision, which interferes with a qualified Convention right such as Article 8 the Court

must be satisfied (the burden being on the State6) that the interference is in accordance

with the law, necessary and proportionate. In assessing proportionality the Court applies

the four-fold test developed by the UK Courts from Canadian case-law, hereafter the

‘Oakes criteria’ from R v Oakes [1986] 1 SCR 103, pages 138-140, described by Lord

Reed in Bank Mellat v Her Majesty's Treasury (No 2) [2014] A.C. 700, para 74, as ‘the

clearest and most influential judicial analysis of proportionality within the common law

tradition of legal reasoning’. This development began with De Freitas v. Ministry of

Agriculture (P.C.) [1999] 1 A.C. 69, 80, where the first three Oakes criteria were adopted

by Lord Clyde drawing on Canadian, South African and Zimbabwean jurisprudence. De

Frietas was applied by the House of Lords in R (Daly) v Home Office [2001] 2 AC 532,

para 27 and again in A v Home Secretary [2005] 2 AC 68, para 30. The fourth Oakes

criteria was added by the House of Lords in Huang v Secretary of State for the Home

Department [2007] 2 AC 167, para 19. The test in its final form may be found in a

number of cases since7, for example, in Bank Mellat, at para 20 per Lord Sumption (see

also paras 73-74 per Lord Reed):

… the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

6 R (Quila) v SSHD [2012] 1 A.C. 621, para 44 7 See, of many, R (Quila) v SSHD [2012] 1 A.C. 621, para 44-45; R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2015] A.C. 945, para 148

15

38. In addressing each of these steps – and, indeed, in assessing whether there is, and the

extent of, any interference in the first place - the Court must be satisfied of the underlying

facts relevant to their determination, as the quoted extract from Lord Sumption’s speech

in Bank Mellat makes clear (‘an exacting analysis of the factual case’). The same point

is made in R v Shayler [2003] 1 A.C. 247, para 61 (Lord Hope at para 61, ‘|A close and

penetrating examination of the factual justification for the restriction is needed’); R

(Countryside Alliance) v AG [2008] 1 AC 719 (Lord Hope at para 78, ‘If relative

suffering had been the determinative issue, a close and careful examination of the factual

basis for that decision would have been necessary to judge whether there was a sufficient

justification for impairing the Convention right’); Sheldrake v DPP [2004] UKHL 43;

[2005] 1 AC 264, per Lord Bingham, para 21, ‘The justifiability of any infringement of

the presumption of innocence cannot be resolved by any rule of thumb, but on

examination of all the facts and circumstances of the particular provision as applied in

the particular case’); R(B) v Governors of Denbigh High School [2007] 1 AC 100, (per

Lord Bingham at para 30 ‘The domestic court must now make a value judgment, an

evaluation, by reference to the circumstances prevailing at the relevant time …

.Proportionality must be judged objectively, by the court’); Tweed v Parades

Commission for NI (HL(NI)) [2007] 1 A.C. 650, (per Lord Bingham at para 3, ‘human

rights decisions under the Convention tend to be very fact-specific and any judgment on

the proportionality of a public authority's interference with a protected Convention right

is likely to call for a careful and accurate evaluation of the facts’).

(5) Adjudicative facts vs. legislative facts

39. That the Court must decide proportionality on the facts is likely to be uncontentious. The

more contentious question is likely to be: what ‘facts’ are relevant to the determination

of proportionality? Plainly, those facts that are specific to the individual concerned and

the individual circumstances that gave rise to the claim are relevant (what will be termed

‘adjudicative facts’, see below). However, in some circumstances the wider ‘legislative

facts’ which have - or should have - informed the policy decision or passage of the

legislative provision will be relevant to the proportionality of any interference with a

Convention right. Although the terms ‘adjudicative’ and ‘legislative facts’ have not been

used by the UK Courts, those terms have been employed for many years by the common

law Courts of the USA, Canada, Australia, South Africa and New Zealand when

distinguishing between the usual fact-finding process of the Courts (adjudicative facts)

16

and the ‘legislative facts’ that are relevant, in particular, in determining the

constitutionality of legislation under their own constitutional systems8 (and see further at

para 47, below). The distinction between adjudicative and legislative facts, and the need

for proof of both kinds of fact, was explained by Sopinka J in the Supreme Court of

Canada in Danson v Ontario (Attorney-General) [1990] 2 SCR 1086, 1099:

This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack. … It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". … Adjudicative facts are those that concern the immediate parties: in Davis' words, "who did what, where, when, how, and with what motive or intent .... " Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic h and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements:

40. The Claimant submits that the ‘adjudicative fact’ and ‘legislative/ constitutional fact’

distinction is a useful one in the present context and that the term ‘legislative fact’

accurately describes the ‘mixed ethical, moral and social policy issues’ referred to in the

Preliminary Issue and which are set out in Section F above. Other examples include:

does a ban on fox-hunting reduce cruelty to foxes? Do advertising bans reduce the

incidence of smoking? Often a legislative choice involves balancing several legislative

facts which are potentially in conflict: for example, legalising abortion might both

increase teenage pregnancy and reduce the incidence of deaths from backstreet abortions.

The death penalty might reduce serious offending but may lead to the execution of

innocent people and be applied disproportionately to marginalised groups. The

proportionality of a legislative measure may turn on establishing these facts and the

balance to be struck between them.

8 Often referred to as the original source for this distinction is a 1942 article by Prof. Kenneth Culp Davis, ‘An Approach to Problems of Evidence in the Administrative Process’, (1942) 55 Harvard Law Review 364, 402: “When an agency finds facts concerning immediate parties – what the parties did, what the circumstances were, what the background conditions were - the agency is performing an adjudicative function, and the facts may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts.”

17

(6) Legislative fact-finding and the UK Courts

41. The Courts of the United Kingdom had little need to resolve disputed ‘legislative facts’

prior to the coming into force of the Human Rights Act 1998, although they were still

relevant in a number of contexts. For example, when the Courts construe a legislative

provision, the ‘mischief’ that it is intended to address or the underlying objects and

purposes of the act are both legislative facts. However, given our constitutional model

with Parliament, rather than a written constitution, as sovereign, it has not been for the

Courts9 to question the evidence upon which a decision-maker, including Parliament, has

chosen to act10. But under the Human Rights Act 1998 (and the European Communities

Act 1972) the Courts are charged with a duty to consider such evidence and determine

whether it is sufficient to justify state interferences in fundamental rights and doing so

does not undermine democracy or the role of Parliament11. In limited circumstances, this

will require them to resolve disputes of evidence in relation to legislative facts, including

by way of cross-examination.

42. For example, in determining whether the risks of terrorism post 9/11 constituted a ‘public

emergency threatening the life of the nation’ (a legislative fact), their Lordships in A v

Home Secretary [2005] 2 AC 68 were not prepared to simply accept the Secretary of

State’s say so that this state of affairs existed. Although, in the event (by a majority, Lord

Hoffman rejecting the Secretary of State’s case on this issue), their Lordships deferred to

the political judgment made by the executive, this was after close analysis of all the

evidence (open and closed) by SIAC (with cross-examination by special advocates), and

close scrutiny of that evidence by their Lordships who made it clear that it was open to

the House to reject it: see per Lord Bingham at paras 26 and 29; Lord Hoffman, paras

9 Other than the Privy Council when exercising its jurisdiction under written constitutional instruments: see, e.g., Pratt & Morgan v AG for Jamaica [1994] 2 AC 1, in which the Privy Council determined that for a prisoner to be on death row for more than 5 years constituted cruel and unusual punishment and was therefore unconstitutional,, contrary to s 17 of the Jamaican Constitution. The Court heard evidence as to the ‘restrictive conditions of imprisonment and the emotional and psychological impact’ of being on death row (p. 17F), which was a ‘legislative fact’. However, the Court did not need to resolve any dispute in relation to that evidence because ‘it only reveals that which is to be expected’. 10 Similar policy issues (legislative facts) are relevant when the Court is considering developing the common law, for example as to whether it is ‘fair, just and reasonable’ to extend a duty of care: see Thomas v Mowbray [2007] HCA 33 para 614; Alfange, Relevance of Legislative Facts in Constitutional Law, (1966) 114 University of Pennsylvania Law Review 637, 640 11 A v Home Secretary [2005] 2 AC 68, para 42 (Lord Bingham); para 80 (Lord Nicholls); paras 90, 92 (Lord Hoffman); paras 107-108 (Lord Hope); para 176 (Lord Rodger); para 196 (Lord Walker)

18

95-97; Lord Hope, para 116; Lord Scott, para 154; Lord Rodger, para 166, 177; Lord

Walker, para 196.

43. Even so, the House still went on to find that the legislative response to that public

emergency – the derogation from Article 5 by way of Order under the HRA and the

introduction of indefinite detention of foreign terrorist suspects under s 23 of the Anti-

terrorism, Crime and Security Act 201412 - had been a disproportionate means of

addressing that emergency. The terrorist threat did not justify the gravity of the

interference with the Convention right to liberty that would be caused, not least as the

legislation did not apply to British nationals who might present as great, if not a greater,

risk than a foreign national (see per Lord Bingham, paras 30-44; Lord Nicholls, paras 81-

85; Lord Hope, paras 121-133; Lord Scott, para 155; Lord Rodger, paras 167, 189-190;

Baroness Hale and Lord Carswell gave concurring judgments (para 219, 240); Lord

Walker dissented, with Lord Hoffman limiting his judgment to the threshold ‘public

emergency’ point). Thus the ‘legislative fact’ of the degree of threat posed by terrorism

was accepted by the Supreme Court as being sufficient to demonstrate a rational

connection to a legitimate aim (see Bank Mellat, per Lord Reed at para 97), but

insufficient to demonstrate that derogation from Article 5 was the least restrictive means

of meeting that aim or that a fair balance was thereby struck between that aim and the

right to liberty.

44. A more recent example is R (British American Tobacco) v Department of Health (Green

J) [2016] E.T.M.R. 38, upheld by the Court of Appeal [2017] 3 WLR 225, involving a

judicial review challenge to the Standardised Packaging of Tobacco Products

Regulations 2015, which required all tobacco products to be sold in plain packaging. The

claimants challenged the Regulations on the grounds they constituted a disproportionate

interference with private property rights, contrary to Article 1 Protocol 1 ECHR, Article

17 EU Charter of Fundamental rights and the common law.

45. Green J affirmed that it was for the Court to decide, on evidence, whether the legislation

was disproportionate, and that the Court can, and must, take into account evidence since

the legislation was promulgated and may strike down a measure on the basis of that

12 Which provided for the detention of non-nationals if the Home Secretary believed that their presence in the United Kingdom was a risk to national security and he suspected that they were terrorists who, for the time being, could not be deported because of fears for their safety or other practical considerations.

19

evidence even if, at the time it was adopted, the legislature had acted lawfully (paras 631-

632). Evidence was admitted (including expert evidence) from both the Claimants and

the Secretary of State as to the efficacy of a ‘plain packaging’ requirement in reducing

the incidence of tobacco-smoking as compared with the alternative (and less restrictive)

measure of a requirement to include a health warning on tobacco products (see paras 489-

508). The judge found the evidence of the Secretary of State (para 592) to be ‘cogent,

substantial and overwhelmingly one-directional in its conclusion, which is that various

types of advertising and branding are effective in influencing consumer reactions’ so that

advertising and branding restrictions could be effective in reducing tobacco consumption.

These were legislative facts.

46. The Court of Appeal, upholding Green J’s judgment, referred to the approach of the ECJ

affirming the need for the Courts to determine the proportionality of measures under EU

law by reference to evidence, including evidence that has come to light since the measure

was adopted: see para 250 and Scotch Whisky Association v Lord Advocate (ECJ) [2016]

1 WLR 2283, paras 59, 65. Moreover, although at paras 252-253 of its judgment the

Court of Appeal was critical of Green J’s proposals (at paras 633-648) as to how complex

expert evidence in relation to economic and econometric analysis should be deployed in

judicial review cases, they did not criticise the way in which he had examined that

evidence in detail and affirmed that the resolution of disputed evidence, including by way

of cross-examination, will sometimes (if not ‘normally’) be necessary (para 252).

Moreover, it will be a matter for first instance judges to determine the appropriate

procedural steps consistently with the principles in the Scotch Whisky case (para 253).

20

(7) The approach to legislative fact-finding in other common law jurisdictions

47. The resolution of legislative facts is an issue that the courts of other jurisdictions,

including the common law courts of the USA13, Canada14, Australia15, South Africa16

and New Zealand17, have had to grapple with under their own constitutional systems. As

noted, above, in these jurisdictions the distinction has been drawn between, on the one

hand, ‘adjudicative facts’ and, on the other, ‘legislative facts’ or ‘constitutional facts’.

48. Although legislative facts are, by their nature, of much wider application than to the

individual whose case is before the court, there has been an acceptance in these

jurisdictions that such facts must be established in order for the Courts to discharge their

duty of determining the necessity and proportionality of interferences with fundamental

constitutional rights.

49. Thus, for example, the federal courts of the USA have for many years drawn a distinction

between cases that do not touch upon fundamental rights, where legislation is presumed

to be constitutional provided it has some rational basis; and those cases where

fundamental constitutional rights are engaged where the Courts must be satisfied of the

‘strict necessity’ of any interference to achieve a legitimate governmental objective18. In

the former case, legislative facts can be presumed; in the latter, they may have to be

proved: see Alfange, ‘Relevance of Legislative Facts in Constitutional Law’, (1966) 114

University of Pennsylvania Law Review 637, 644:

If the authority to enact a federal law is found within the delegated powers of Congress, and the law cannot reasonably be said to violate any of the constitutional prohibitions on congressional action, it is enough that Congress has seen a need and has acted to meet it. But where the exercise of legislative

13 See the discussion in Tran, C, Facts and Evidence in Litigation under the Charter of Human Rights (2012) 36(1) Melbourne University Law Review 287 14 Danson v Ontario (Attorney-General) [1990] 2 SCR 1086,1099-1101; RJR-MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, p. 286-287, 140-141 (La Forest J), 153-171 (Mclachlin J); R v Malmo-Levine (A-G of Ontario and Others intervening); R v Caine (A-G of Ontario and Others intervening) [2004] 3 LRC 382, paras 26-29; R v Spence [2006] 2 LRC 602, paras 48-67; Attorney General of Canada v Bedford [2014] 4 LRC 74; Carter v Canada [2015] SCC 5, para 109 15 Breen v. Sneddon 106 C.L.R. 406 (1961); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Thomas v Mowbray [2007] HCA 33 para 260, 268, 296 (Kirby J), 403 (Hayne J), 523-527 (Callinan J), 611-639 (Heydon J) 16 Shoprite Checkers (Pty) Ltd [2015] ZACC 23, paras 85, 160-168 17 Hansen v The Queen [2007] NZSC 7, paras 231-232 18 United States v. Carolene Products Co., 304 US 144 (1938) (fn. 4); Roe v Wade 410 US 113 (1973); Brown v Board of Education 347 US 483

21

power approaches a constitutionally prohibited area, as in legislation restricting speech, the question of need becomes crucial, and no sound constitutional judgment can be made except by consideration of legislative facts.

50. The Courts of these jurisdictions have developed principles to determine when they must

determine ‘legislative facts’ for themselves, and by what kinds of evidence, and when

they may adopt or take judicial notice of the legislative facts found or assumed by the

decision-maker, including the legislature. In constitutional cases, legislative facts may

need to be proved by the applicant to demonstrate the extent of any interference upon

wider society and by the State to discharge its burden of proving that the interference is

nevertheless lawful, including that it is proportionate in the light of the Oakes criteria.

51. These legislative facts can be proved through extraneous material, such as (in the USA)

by a Brandeis brief19, but fairness may sometimes require them to be proved in the same

way as adjudicative facts, including by expert evidence with cross examination. The

need for expert evidence with cross-examination has been most clearly articulated by the

Supreme Court of Canada (R v Spence [2005] 3 SCR 458, 493–4, para 68 (Binnie J);

Attorney General of Canada v Bedford [2014] 4 LRC 74, para 53; R v Malmo-Levine

(A-G of Ontario and Others intervening) [2004] 3 LRC 382, para 28), but the need for

proof of legislative facts has been highlighted in other jurisdictions, including the High

Court of Australia (see e.g. Thomas v Mowbray [2007] HCA 33 para 260 (Kirby J), 523,

526 (Callinan J), 617-618 (Heydon J)). However, the usual rules of evidence may be

relaxed in relation to such evidence (see e.g. Hansen v The Queen [2007] NZSC 7, paras

231-232; Thomas v Mowbray, 620, 629 (Heydon J)). The Court may take judicial notice

of a social fact from other background material provided (a) it complies with principles

of natural justice and (b) the circumstances in which it may do so are limited by the

importance of the fact to the resolution of the claim: broadly, the more central the matter

is to the resolution of the case the better the evidence must be (R v Spence, para 53, 63).

52. While the Canadian appellate Courts have previously been more willing to overturn

findings of fact made by a trial judge if they are ‘legislative facts’ rather than

‘adjudicative facts’ (RJR-MacDonald, para 141), in later decisions the Supreme Court

19 After Louis Brandeis, later Supreme Court Justice but at the time leading Counsel for the State in Muller v Oregon 208 US 412 (1908) in which he introduced such ‘legislative facts’ as justification for the impugned legislation by what became known as a Brandeis brief

22

has rejected that distinction and held that the test was the same for both categories of fact

namely ‘palpable and overriding error’ (Attorney General of Canada v Bedford [2014] 4

LRC 74, para 53; Carter v Canada [2015] SCC 5, para 109). When in dispute legislative

facts are, accordingly, to be established through the forensic process of a trial rather than

on appeal.

53. Not all legislative facts need to be proved, however. Facts that are not in dispute, or

which are ‘beyond reasonable dispute’ need not be proved (R v Spence, para 53).

Similarly, where ‘legislation is aimed at changing human behaviour’, the ‘causal

relationship may not be scientifically measurable’, in which case the Court may infer a

fact on the basis of ‘reason and logic’: see RJR-MacDonald Inc v Attorney General of

Canada [1995] 3 SCR 199 the Chief Justice, Mclachlin J, para 153-158; Hansen v The

Queen [2007] NZSC 7, para 232. Thus, in RJR-MacDonald, McLachlin J (later Chief

Justice) was prepared to infer from ‘reason and logic’ and the limited evidence available

that advertising bans and package warnings were likely to lead to a reduction in overall

tobacco use (para 158). On the other hand, there was no evidence to support the

conclusion that a complete ban on the use of a tobacco trade mark on products other than

tobacco led to a reduction in tobacco use, and the Court was not prepared to infer such a

causal link, and the provision in question failed the rational connection test (para 159,

164).

54. There may, also, be circumstances where the Court should accord particular weight to

the facts found by the decision-maker, including Parliament, either because of the

particular expertise (or institutional competence) of the decision-maker or because they

are not susceptible to empirical proof. To this extent only the Claimant accepts the

proposition at para 110 in Conway (see further at para 57, below). The circumstances in

which this may be the case are likely to mirror closely those areas in which the Courts

afford a wide discretionary area of judgment to the decision-maker, for example the

prevention of terrorism or the making of social and economic policy where the executive

or Parliament may be the more appropriate fact-finder (or fact-assumer). Lord Reed, in

his discussion of the Oakes test of proportionality in Bank Mellat, made much the same

point: see paras 93-96. He pointed out that:

93 Legislation may be based on an evaluation of complex facts, or considerations (for example, of economic or social policy, or national security) which are

23

contestable and may be controversial. In such situations, the court has to allow room for the exercise of judgment by the executive and legislative branches of government, which bear democratic responsibility for these decisions. The making of government and legislative policy cannot be turned into a judicial process.

55. Lord Reed went on at para 94 to endorse the approach adopted by McLachlin J in the

Canadian Supreme Court in RJR-MacDonald when applying the rational connection test

(stage 2 of the Oakes test) to ‘legislation aimed at changing human behaviour’, where

‘the causal relationship may not be scientifically measurable’, namely that the State ‘must

show a causal connection between the infringement and the benefit sought on the basis

of reason or logic’. Thus, it will not always be necessary for the State to have to prove

the necessary ‘legislative facts’.

56. However, as ever, context is everything, and Lord Reed’s judgment is not to be taken as

authority for the broader proposition that such ‘complex facts’ need never be proved.

Even in a case where the Court lacks the expertise of the primary decision-maker, or

where the relevant legislative facts are not easily susceptible to proof, the Court cannot

abdicate its adjudicative function in relation to a disputed social fact that is central to an

issue within the Court’s competence, as A v Home Secretary and the case-law of the

Canadian and other commonwealth courts referred to above make clear. As has been

noted, in RJR-MacDonald, McLachlin J did not accept, even on the basis of ‘reason or

logic’, that a rational connection had been proved between a complete ban on the use of

a tobacco brand and non-tobacco products (para 159, 164, see above para 53). The

standard of evidence that will be considered sufficient will depend on the context, and

the Courts cannot abrogate their constitutional function by too deferential approach to

the legislature, as McLachlin J emphasised at para 136:

As with context, however, care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To cany judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the

24

courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.

(8) Whether Parliament is the more appropriate forum for resolving the disputed legislative facts

57. For the reasons given, the Claimant submits that the Courts can determine the relevant

legislative facts in issue in this case at Section F, above, which must be tested by way of

cross-examination if necessary in order to ensure fairness. But a further question for this

Preliminary Issue is whether Parliament is the more appropriate decision-maker, and for

that reason cross-examination should not be ordered as a matter of discretion. This was

the view of the Divisional Court in the Conway case, at para 110:

110. Parliament is also better placed than the court to make the relevant assessment regarding the likely impact of changing the law in the matter. The consideration given by Parliament through its processes (including Select Committee investigations and reports) to the issue of assisted dying over the years has been more thorough and extensive than could be achieved in a court hearing to determine issues of law.

58. The Court is invited not to follow this approach, for six reasons.

59. First, in Conway there was no application to cross-examine and the question of whether

Parliament or the Court the more appropriate decision-maker was not the subject of

argument.

60. Second, the Supreme Court in Nicklinson has already determined that the Courts are

constitutionally and institutionally competent to determine the proportionality of the

absolute ban on assisted suicide in s 2(1) Suicide Act. For the Courts to then refuse to

determine the disputed legislative facts upon which the assessment of proportionality

depends is to abrogate the very jurisdiction that the Supreme Court has confirmed it is

for the courts to exercise.

61. Third, the Supreme Court in Nicklinson has already determined that the Courts must

resolve the contested issues of legislative fact (para 30, above).

62. Fourth, the Court must determine the proportionality of s 2(1) upon the basis of the

evidence available at the time it hears the challenge, not when Parliament introduced the

legislation or last considered whether to change the law: see the British American

25

Tobacco case and Scotch Whisky cases, above, paras 45-46. In this context it is relevant

that the last time a Parliamentary Select Committee heard evidence in relation to s 2(1)

was in 2005 when the House of Lords Select Committee investigated Lord Joffe’s

Assisted Dying for the Terminally Ill Bill 2004, reporting on 4 April 2005 (HL Paper 86-

I). That Select Committee (which heard from more than 140 witnesses in the UK, the

Netherlands, the US State of Oregon and Switzerland and received 60 submissions of

written evidence from organisations and more than 14,000 letters and e-mails from

individuals) did not reject a change in the law. Rather, it recommended the Bill be

adjourned until after the impending election (which took place on 5 May 2005) and then

go back to the House for a formal Second Reading before being referred to a Select

Committee of both Houses. The Select Committee also made a number of

recommendations for the safeguards that should be considered in the event the Bill came

back before Parliament (report, paras 235, 269). Accordingly, (a) the Select Committee

did not find that the absolute ban in s 2(1) was necessary; (b) it is now over 12 years since

any formal evidence gathering was conducted by Parliament and the Courts must

consider the proportionality of s 2(1) in the light of evidence that is now available.

63. Fifth, because Parliament has not considered the position of those in Omid’s position,

unlike the position in Conway; neither the Assisted Dying for the Terminally Ill Bill 2004

nor the Assisted Dying (No 2) Bill (which were both concerned with persons who are

terminally ill) addressed the situation of Omid, Tony Nicklinson and Paul Lamb.

64. Sixth, because relevant evidence is now available that would enable the Court to resolve

the issue. It may be that, in the past, there has been an absence of empirical evidence of

the relevant legislative facts, justifying the courts’ approach of inferring from ‘reason

and logic’ that the absolute ban was proportionate without having to decide them on the

basis of evidence: this, arguably, was the approach taken in R (Pretty) v DPP [2002] 1

AC 800, although there was no discussion of whether or how the relevant legislative facts

were to be proved. However, evidence of the relevant legislative facts is now available

which are capable of empirical proof, as the Canadian case of Carter v Canada

demonstrates.

26

I. Conclusion

65. The evidence collated by Omid is capable of establishing that the blanket ban in s 2(1)

constitutes a grave interference with his Convention rights. The Defendant seeks to

justify that interference by reference to the need to protect vulnerable people and for the

protection of morals, and has produced evidence in support his case in the form of expert

reports from Baroness Finlay. The Claimant has evidence that refutes the Defendant’s

purported justification. The determination of whether the interference is a proportionate

one in pursuit of those aims turns on the legislative facts outlined at section F, above and

to which Baroness Finlay’s evidence relates. Those legislative facts are in dispute; their

resolution is central to the determination of the claim; there is empirical evidence capable

of establishing the relevant legislative facts; the Defendant’s version of the legislative

facts cannot be inferred from ‘reason and logic’; the matter falls within the constitutional

and institutional competence of the Courts and the relevant facts must now be subjected

to a proper forensic process, as the Supreme Court envisaged in Nicklinson.

66. Accordingly, the Preliminary Issue should be answered in the affirmative.

PAUL BOWEN QC

JENNIFER MACLEOD

Brick Court Chambers

SAIMO CHAHAL QC (Hon)

Bindmans LLP

8 FEBRUARY 2018

27

J. ANNEX: SUMMARY OF EXPERT EVIDENCE IN OMID’S CASE

Professor Margaret Battin, Distinguished Professor of the Department of Philosophy,

University of Utah and Adjunct Professor, Department of Internal Medicine, Division of

Medical Ethics and Humanities, University of Utah School of Medicine. She gives

evidence demonstrating that legal physician-assisted dying laws, particularly those in

Oregon and the Netherlands, do not lead to a ‘slippery slope’ of safeguards being eroded

or to an increase in other unacceptable end-of-life practices.

Professor Luc Deliens, Medical Sociologist and researcher, University professor of

Palliative Care Research at Ghent University and Vrije Universiteit Brussel, Director of

the End-of-Life Care Research Group, Belgium. He gives evidence of the experience of

legalised euthanasia and assisted suicide in Belgium, including relevant statistics, the

efficacy of legal safeguards and the absence of evidence of a ‘slippery slope’.

Professor Jean Bernheim, retired oncologist and palliative care physician, Professor of

Medical ethics, Professor Emeritus of Medicine in the Faculty of Medicine at the Vrije

Universiteit Brussel Medical School. He gives evidence that the legalization of

euthanasia in Belgium has enhanced, rather than undermined, the provision of palliative

care and increased the confidence of the public in the medical profession

Professor Heleen Weyers, Assistant Professor at the Department of Legal Theory at the

University of Groningen 2004) and co-authored with John Griffiths and Alex Bood,

“Euthanasia and Law in the Netherlands” (Amsterdam University Press, 1998) and with

John Griffiths and Maurice Adams, “Euthanasia and Law in Europe” (Hart Publishing

2008). She provides empirical evidence demonstrating that legal physician-assisted

dying laws in the Netherlands do not lead to a ‘slippery slope’ of safeguards being eroded

or to an increase in other unacceptable end-of-life practices.

Professor Glynn Owens, Professor of Psychology at the University of Auckland,

specialising in the psychology of end of life care. He gives evidence as to (1) Medical

decisions ending life in New Zealand, including acts of euthanasia and physician assisted

suicide and LAWER compared with the United Kingdom and the Netherlands; (2) why

people choose to die: the concept of ‘rational decisions to die’ contrasted with ‘suicide’;

(3) The medical ethics of physician-assisted dying, including whether any ethical

distinction may be drawn between (i) existing end of life practices that are lawful and

28

those that are unlawful; (ii) acts and omissions causing death; (iii) euthanasia and

physician assisted suicide; and (iv) a legal regime permitting assisted suicide for

terminally ill persons with fewer than 6 months left to live and those who are physically

incapacitated and suffering unbearably but whose death cannot be accurately prognosed;

and where the concept of ‘sanctity of life’ sits in the context of medical ethics; and (4)

why palliative care cannot always provide a solution.

Professor Helene Starks, Associate Professor of Bioethics and Humanities, School of

Medicine, and Director of Metrics, Quality & Evaluation Core, Cambia Palliative Care

Centre of Excellence, University of Washington. She gives evidence of the motivations

for assisted dying among patients; that depression is rarely a feature and in any event can

be accurately identified so that consent to make an end of life decision can be accurately

assessed; and that end of life decisions are being taken in both permissive and non-

permissive jurisdictions.

Professor Sheila Maclean, Professor of Law and Ethics in Medicine at the University of

Glasgow, Royal Society of Canada Expert Panel on End-of- Life Decision Making

(2011) and assisted in the preparation of their report (the ‘Royal Society of Canada

Report’). She gives evidence as to the moral or ethical arguments for and against

legalisation of assisted dying; of the costs and risks of the status quo; the additional

benefits of legalisation including improved openness in discussions between patients and

their physicians concerning end of life; and concluding the balance comes down strongly

in favour of legalization subject to strict safeguards and limitations; however a

requirement of terminal illness with 6 months or fewer to live is not justified.

Prof. Linda Ganzini, Director of Geriatric Psychiatry Fellowship Program and Professor

of Psychiatry and Medicine, Oregon Health and Science University. She gives evidence

of the studies into the reasons underpinning people’s requests for assistance in dying and

the requirements of US law for establishing capacity to make those decisions.