A Wiltshire man will have to wait to discover if he will be given the chance to put his right-to-die case before the High Court, after his barrister argued his case should be made before the nation’s top judges.

Tony Nicklinson has ‘locked-in syndrome’ after a stroke seven years ago, and wants the right to end his life, but is so paralysed he would effectively need someone to kill him.

The 57-year-old father of two wants a judge to rule that anyone who does will not be charged with murder, but the Ministry of Justice is fighting his case, saying it would be for Parliament to rule on such a diversion from the existing law, and so the case should be thrown out before it is even heard in full.

Paul Bowen, the barrister for Mr Nicklinson, said the Ministry lawyers had not advanced any arguments which were a sufficient ‘knock-out blow’ on the case, and it should still be heard.

He said the Ministry of Justice submitted that “necessity can never afford a defence to a charge of murder”. But Mr Nicklinson argues that the MoJ “cannot establish on the balance of probabilities” that his case on necessity “has no real prospects of success”.

Mr Bowen said Mr Nicklinson’s case was that “an act of euthanasia or assisted suicide” was the only means “by which his suffering may be brought to an end and his fundamental common law rights of autonomy and dignity may be vindicated”.

He told the judge that Mr Nicklinson’s “invocation of the defence of necessity rests, in large part, upon the submission that the defence is necessary to allow his suffering to end and to give effect to his fundamental common law rights of autonomy and dignity”.

Mr Nicklinson, who communicates through the use of a perspex board or by using his Eye-Blink computer, is seeking declarations that it is lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity.

Mr Bowen said the “courts have never considered directly the question arising in this case where voluntary active euthanasia is the issue”. He said there was no bar to the courts dealing with such cases.

He told the judge: “The legislation of medically assisted dying is one area where there may be considerable advantages to a gradual, step-by-step development of the common law rather than the all or nothing approach of legislation.”

Counsel added: “The court can extend the common law defence of necessity to the circumstances of the present case – an act of voluntary active euthanasia or assisted suicide of a competent adult – while stipulating that the application of the defence in other contexts will have to await the particular facts of a particular case.”The judge is expected to reserve his decision to a later date.