Hard cases, great cases: bad law

This is one of those unfortunate cases...in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law. Judge Robert Rolfe 1st Baron Cranworth in Winterbottom v Wright UK 1842.

Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. Oliver Wendell Holmes Jnr (Northern Securities Co. v. United States 1904)

The UK case of the plight of Locked-In suffer, Tony Nicklinson, who is seeking to 'change the existing understanding of the common law' on assisted suicide (effectively, murder) is by any rendering a hard case.

Nicklinson had a massive stroke in 2005 that has left him in a Locked-In state, unable to care for himself and paralysed, save for movement of his head and eyes.

He wants to be able to request assistance to die (at the hands of a doctor or his wife) and to know that those assisting him will not be prosecuted.

His wife, Jane, told a UK media outlet that, 'We are asking for it to be legal for someone to end his life. The only way to relieve Tony's suffering is to kill him."

Nicklinson was given the go ahead by the British High Court to begin legal proceedings on two of the three grounds sought by Nicklinson's counsel. Firstly, they are seeking a common law defence of necessity against a charge of murder and, secondly, they seek a declaration of Mr Nicklinson's right to respect for private life under Article 8 of the European Convention on Human Rights.

This second declaration seems to assume that a fundamental right to die does exist. This proposition was also made in 2001 in the Diane Pretty case. Diane Pretty suffered Motor Neurone Disease and was seeking a pre-emptive immunity from prosecution for someone assisting in her death. The British High Court determined that Article 8 cannot be read to mean that a right to die exists. Pretty appealed to the House of Lords and then to the European Court of Human Rights, both institutions endorsed the original judgement.

In 2009, Debbie Purdy, an MS sufferer, sought through the courts to determine, in advance, whether her husband would face prosecution if he assisted in her death by taking her to Switzerland to end her life. Based also on Article 8 of the European Convention on Human Rights, the House of Lords found that there was a 'right to know' and instructed the Director of Public Prosecutions to issue a set of guiding principles upon which someone in Purdy's husband's position could refer to.

The first interim policy guidelines were issued in September 2009. The DPP, Keir Starmer QC, stressed, however, that, "There are no guarantees against prosecution ... it is my job to ensure that the most vulnerable people are protected, while at the same time giving enough information to those people like [Debbie] Purdy who want to be able to make informed decisions about what actions they may choose to take," he said.

Assisting suicide has been a criminal offence for nearly 50 years and my interim policy does nothing to change that.

Perhaps so, but issuing guidelines which essentially bind in some way the DPP, rather than maintaining the usual case-by-case determinations based on evidence and other factors, have been seen by many as a de facto change in the law, bypassing the usual arbiter of changes to the law: the parliament. Rather than allowing the courts to temper justice with mercy, the DPP seems to be allowing mercy to tamper with justice.