Fleming v Ireland and Others

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 29 April 2013
• Neutral Citation: [2013] IESC 19
• Court: Supreme Court
• Docket Number: [No. 19 of 2013]
• Date: 29 April 2013

Fleming v Ireland & Ors

Between/

Marie Fleming

Plaintiff/Appellant

and

Ireland, Attorney General and the Director of Public Prosecutions

Defendants/Respondents

and

Irish Human Rights Commission

Amicus Curiae

[2013] IESC 19

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

McKechnie J.

Clarke J.

Appeal No. 019/2013

THE SUPREME COURT

CONSTITUTIONAL LAW

Legislation

Challenge to constitutionality of Criminal Law (Suicide) Act 1993, s 2(2) - Declaration sought that criminalisation of aiding, abetting counselling or procuring suicide or attempted suicide of another invalid having regard to the Constitution and incompatible with State's obligations under ECHR - Plaintiff in late stage of incurable degenerative condition - Unable to end own life - Severe pain - Locus standi - Whether possible to argue constitutional rights interfered with by measure indirectly preventing exercise of asserted right - Hypothetical application of provision - Whether possible to have standing where no immediate threat of challenged measure being applied to a plaintiff - Presumption of constitutionality - Whether right to life imports right to die - Right to personal and bodily autonomy - Right to self-determination - Right to privacy - Right to live - Right to equality before the law - Unenumerated rights - Discrimination - Whether provision discriminated between able-bodied and disabled persons suffering from terminal illnesses - Proportionality - Entitlement of state to regulate activities detrimental to the life and safety of persons - D(M) v Ireland [2012] IESC 10 (Unrep, SC, 23/2/2012); Pretty v United Kingdom (2002) 35 EHRR 1; Heaney v Ireland [1996] 1 IR 580; Rock v Ireland [1997] 3 IR 484; Carter v Canada [2012] BCSC 886; Re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79; Rodriguez v British Colombia [1993] 3 SCR 519; Washington v Glucksberg 521 US 702; R (Pretty) v DPP [2001] UKHL 61; Norris v Attorney General [1984] IR 36; Cahill v Sutton [1980] IR 269; Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556; Pigs Marketing Board v Donnelly (Dublin) Ltd [1939] IR 413; In re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill [1940] IR 470; Buckley (Sinn Féin) v Attorney General [1950] IR 67; McGee v Attorney General [1974] IR 284; Brennan v Attorney General [1983] ILRM 449; Quinn's Supermarket v Attorney General [1972] IR 1; An Blascaod Mór Teo v Commissioner of Public Works [2000] 1 IR 6; De Burca v Attorney General [1976] IR 38 and Haas v Switzerland (App 31322/07) (Unrep, ECtHR, 20/1/2011) considered - Criminal Law (Suicide) Act 1993 (No 11), s 2(2) - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on Human Rights 1950, arts 8 and 14 - Constitution of Ireland 1937, Arts 40.1 and 40.3 - Appeal dismissed (19/2013 - SC - 29/4/2013) [2013] IESC 19

Fleming v Ireland

CONSTITUTIONAL LAW

Statute

Validity of statute - Prohibition on assisted suicide - Right to life - Personal rights - Right to equality - Locus standi - Presumption of constitutionality - Whether plaintiff having locus standi to challenge constitutionality of statutory provision - Whether constitutional right to commit suicide - Whether constitutional right to assisted suicide -Whether prohibition on assisted suicide repugnant to Constitution - Whether prohibition incompatible with European Convention on Human Rights - In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79; M.D. (a minor) v Ireland [2012] IESC 10, [2012] 1 IR 697; Norris v The Attorney General [1984] IR 36 and McGee v Attorney General [1974] IR 284 approved - An Blascaod Mór Teo v Commissioners of Public Works (No 3) [2000] 1 IR 6; In re Art 26 of the Constitution and the Offences against the State (Amendment) Bill 1940 [1940] IR 470; Brennan & Ors v Attorney General [1983] ILRM 449; Buckley and others (Sinn Féin) v Attorney General and Another [1950] IR 67; de Burca v Attorney General [1976] IR 38; Cahill v Sutton [1980] IR 269; Carter v Canada [2012] BCSC 886, Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556; Fleming v Ireland [2013] IEHC 2, [2013] 2 ILRM 73; Haas v Switzerland (App No 31322/07), (Unrep, ECHR, 20/1/2011); (2011) 53 EHRR 33; Heaney v Ireland [1996] 1 IR 580; McGee v Attorney General [1974] IR 284; Pigs Marketing Board v Donnelly (Dublin), Ltd [1939] IR 413; Pretty v United Kingdom (App No 2346/02), (2002) 35 EHRR 1; Quinn's Supermarket v Attorney General [1972] IR 1; R (Pretty) v DPP [2001] UKHL 61, [2002] 1 AC 800; Rock v Ireland [1997] 3 IR 484, Rodriguez v British Columbia (1993) 50 BMLR 1 and Washington v Glucksberg (1997) 521 US 702 considered - Offences against the Person Act 1861 (24 & 25 Vict, c 100), ss 61 and 62 - Criminal Law (Suicide) Act 1993 (No 11), s 2 - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - Constitution of Ireland 1937, Articles 5, 9, 16, 30.3, 40.1, 40.3, 40.6 and 43 - European Convention on Human Rights 1950, articles 2, 3, 8, 9 and 14 - Finding that locus standi established; appeal dismissed (19/2013 - SC - 29/4/2013) [2013] IESC 19

Fleming v Ireland

Facts: The appellant sought orders declaring that s. 2(2) of the Criminal Law (Suicide) Act 1993, which made it an offence to act as an accomplice to the suicide of another, was invalid due to it being incompatible with the Irish Constitution (notably Article 40.3.2, protection of person) and the European Convention on Human Rights. Alternatively, an order was sought directing the Director of Public Prosecutions to publish guidelines as to the different prosecution considerations when dealing with a person who had assisted another in committing suicide. It was her view that there was a right to die in extreme circumstances but that this was not reflected in the absolute terms of the aforementioned legislation. The appellant"s claim was refused and an appeal was launched seeking the same relief except the order for the publication of guidelines on assisted suicide.

It was the appellant"s case that as a sufferer of multiple sclerosis, she suffered a great deal of pain, faced a significant number of problems in everyday life, and required the constant attention by carers. It was her desire to be able to die at a time of her choosing in a peaceful and dignified manner. In order to do so, she wished to have the assistance of her partner who was prepared to act in such a role if it was considered lawful. She claimed that s. 2(2) of the Criminal Law (Suicide) Act 1993, which prevented such assistance, was repugnant to Article 40.3.2 of the constitution and the European Convention on Human Rights (specifically Article 14 on disability discrimination). She recognised there was a public interest in refusing to legalise euthanasia but it was her view that a limited exception should exist for disabled persons who are suffering from a terminal and who are able to express their wishes to lawfully receive assistance from a person in ending their life. She contended that the absolute ban on assisted suicide was a disproportionate measure.

The respondent contended that the Irish Constitution did not expressly or implicitly confer a right to die and that the enforcement of the legislation was in the public interest and took priority over an individual"s right to seek assistance in committing suicide. Further, the same position was submitted in relation to the European Convention on Human Rights including disability discrimination under Article 14.

Held by the court that whilst it was true that a complete statutory ban that interfered with an individual"s autonomy would require strong justification, the Criminal Law (Suicide) Act 1993 including s. 2(2) was a justifiable infringement due to public protection considerations and the Article 40.3.2 of the Irish Constitution"s duty of the state to protect life. It was further noted that whilst suicide was no longer considered a crime, there was no express or implicit right within the Irish Constitution to be able to commit suicide, whether assisted or not. As no right existed, no disability discrimination consideration arose. The appellant"s case was seen as similar to Pretty v. United Kingdom (Application No. 2346.02) where the European Court of Human Rights held that it was for the member states to assess the likely consequences of a relaxation of assisted suicide legislation with the introduction of exceptions. It was held that when the Criminal Law (Suicide) Act 1993 was made, proper consideration had been given and the decision to make an absolute ban was valid. The stance that the court was taking was therefore determined to be in accordance with the decisions of the European Court of Human Rights and therefore the European Convention on Human Rights.

Appeal refused.

CRIMINAL LAW (SUICIDE) ACT 1993 S2(2)

CRIMINAL LAW (SUICIDE) ACT 1993 S2(4)

CRIMINAL LAW (SUICIDE) ACT 1993 S2

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.2

D (M)(A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 2 ILRM 305

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

PRETTY v UK 2002 35 EHRR 1

HEANEY v IRELAND 1996 1 IR 580

ROCK v IRELAND 1997 3 IR 484

CARTER v CANADA 2012 BCSC 886

WARD OF COURT (WITHHOLDING MEDICAL TREATMENT)(NO.2), IN RE 1996 2 IR 79

RODRIGUEZ v BRITISH COLUMBIA 1993 3 SCR 519

CANADIAN CRIMINAL CODE S241(B)

CANADIAN CRIMINAL CODE S7

CANADIAN CRIMINAL CODE S12

CANADIAN CRIMINAL CODE S15(1)

WASHINGTON v GLUCKSBERG 1997 521 US 702

R (PRETTY) v DPP 2001 UKHL 61

SUICIDE ACT 1961 (UK) S2(1)

SUICIDE ACT 1961 (UK) S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN...