SEMINAR 3 (Right to life)
Re A (Children) (Conjoined Twins: Medical Treatment) (No 1)  4 WLR 480; 4 All ER 961
Portsmouth NHS Trust v. Derek Wyatt and Charlotte Wyatt  EWHC 2247
R. (on the application of Diane Pretty) v. DP and Secretary of State for the Home Department  UKHL 61
Rodriguez v. Attorney General of British Columbia  3 SCR 519, Supreme Court of Canada
Contrast the two general commentaries on the Re A decision:
?These are questions of law, not of morals or ethics. Exceptionally, the court allowed the Archbishop of Westminster and the Pro-Life Alliance, who opposed the operation, to make written submissions. The vital issue for the doctors, however, was not what the Archbishop or anyone else might think about the ethics or morality of what should be done, but what the law, and particularly the criminal law, would say. The question was one which could be decided only by a court.' (D. Tausz and J.C. Smith, ?Surgical Separation - Whether Surgical Separation of Conjoined Twins that Would Lead to Death of Non-viable Twin Lawful', Criminal Law Review, (2001), pp. 400-405)
?No human rights lawyer could have scripted the scene better as a backdrop to the introduction of the Human Rights Act in [the UK]. The Court of Appeal was faced with a conjoined twins case on the eve of the adoption of the European Convention on Human Rights into domestic law. It involved, inter alia, the right to life; protection from torture, inhuman and degrading treatment and punishment; the right to privacy and family life; and the right to freedom of religion. The case involved competing morals and values effectively pitting the interests of the parents against the medical establishment; the interests of the Roman Catholic Church against the state, and indeed the interests of one sister against her identical conjoined twin. Few cases encapsulate so definitively the broad array of issues which courts must assess in this new rights era. Few cases depict so aptly the complex series of conflicting societal values and competing individual needs within contemporary society. Few cases demonstrate so well the need for judicial exploration of rights issues in [the UK]?But for the most part there is very little discussion of human rights, per se.' (J.L. Black-Branch, ?Being over Nothingness: the Right to Life under the Human Rights Act', 26 European Law Review (2001), pp. 22-28, (26 Supp Human Rights Survey))
Questions to consider:
- Why did the Court of Appeal (in Re A) not adopt human rights reasoning to determine the outcome of the case?
- Should the right to life in Article 2(1) not have been construed to offer legal protection to both twins?
- What is your response to Black-Branch's criticism of the Court of Appeal's approach and its preference for utilitarian arguments over human rights based reasoning?
- In contrast the Re A, does the court reasoning in the Pretty case give greater weight to the values underpinning Article 2?
- Compare the courts' reasoning in the Pretty and Rodriguez cases.
- How does the court go about determining what Baby Charlotte's best interests are? Has the court's reasoning changed since Re A?
Feldman, pp. 179-240
Fenwick, pp. 38-43
Janis et al., pp. 134-137
R. Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (London: HarperCollins, 1993)
C. Gearty, ?Unravelling Osman', Modern Law Review, 64 (2001), pp. 159-190
G. Hogan and C. Walker, Political Violence and the Law in Ireland (Manchester: Manchester University Press, 1989), pp. 64-69
S. Michalowski, ?Sanctity of Life - Are Some Lives More Sacred than Others?', 22, (2002), Legal Studies, pp. 377-397
G. Northam, Shooting in the Dark: Riot Police in Britain (London: Faber and Faber, 1988)
R.J. Spjut, ?The "Official" Use of Deadly Force by the Security Forces Against Suspected Terrorists', Public Law, (1986), pp. 38-66
RELEVANT CASES (INDICATIVE LIST)
A (Children) (Conjoined Twins: Medical Treatment) (No 1)  2 WLR 480 (CA)
Airdale NHS Trust v. Bland  2 WLR 316;  1 All ER 821, HL
Attorney General v. Able  1 All ER 277
B (A Minor)(Wardship: Medical Treatment)  1 WLR 1421,  3 All ER 927, CA
C (A Minor) (Wardship: Medical Treatment)  Fam. 26,  2 All ER 782
Farrell v. Secretary of State for Defence  1 All ER 1667, HL
J (A Minor) (Wardship: Medical Treatment)  Fam. 33,  3 All ER 930, CA
Kelly v. Kelly  SC 285
Lewis v. Attorney-General for Jamaica  3 WLR 1785, PC
Osman v. Ferguson  4 All ER 344, CA
Portsmouth NHS Trust v. Wyatt and Ors EWHC 2247, Fam.
Pratt v. Attorney-General for Jamaica  2 AC 1, PC
S (Adult: Refusal of Medical Treatment)  Fam. 123,  4 All ER 671
R v. Clegg  1 All ER 334
R v. DPP, ex p Diane Pretty  1 AC 800
R v. DPP, ex p Manning  3 WLR 463, DC
Attorney-General v. X  1IR 1, 17, SC
Andronicou v. Cyprus, judgement of 9 October 1997, 1997-VI, 2059, 25 EHRR 491
LCB v. United Kingdom, judgement of 9 June 1998, 27 EHRR 212
McCann, Farrell and Savage v. United Kingdom (1995) 21 EHRR 97
Open Door Counselling Ltd and Dublin Well Woman Centre Ltd. v. Ireland, Eur. Ct. HR, Series A, No. 246-A, judgement of 29 October 1992, 15 EHRR 244
Osman v. United Kingdom (1998) 29 EHRR 245
Soering v. United Kingdom, judgement of 7 July 1989, 11 EHRR 439
Widner v. Switzerland, App. No. 9348/91, 32 DR 190 (1993), Eur. Comm. HR
X v. Ireland (6040/73) CD 44, 121 Eur. Comm. HR
Rodriguez v. Attorney General of British Columbia  3 SCR 519