Court of Appeal
Published February 24, 2009
Regina (Purdy) v Director of Public Prosecutions
Before Lord Judge, Lord Chief Justice, Lord Justice Ward and Lord Justice
Lloyd
Judgment February 19, 2009
The refusal by the Director of Public Prosecutions to publish detailed
guidance as to the circumstances in which individuals would or would not be
prosecuted for assisting another person to commit suicide was lawful.
The Court of Appeal so held in dismissing the appeal of Ms Debbie Purdy
against the dismissal by the Queen’s Bench Divisional Court (Lord Justice
Scott Baker and Mr Justice Aikens) (The Times November 17, 2008) of
her application for judicial review by way of a declaration that her rights
under article 8 of the European Convention on Human Rights had been
infringed by the failure of the Director of Public Prosecutions to publish
detailed guidance as to the circumstances in which individuals would or
would not be prosecuted for assisting another person to commit suicide, in
particular where the assisted suicide took place in a country where the
practice was lawful.
Lord Pannick, QC and Mr Paul Bowen for Ms Purdy; Ms Dinah
Rose, QC and Mr Jeremy Johnson for the DPP; Mr Charles Foster
for the Society for the Protection of Unborn Children, intervening.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that section
2(1) of the Suicide Act 1961 imposed criminal liability for complicity in
another’s suicide.
Parliament alone had the authority to amend that law and identify the
circumstances, if any, in which the conduct of the individual who assisted
or attempted to assist another to commit suicide should be decriminalised.
The present case revolved around section 2(4) which provided that no
proceedings should be instituted for an offence under section 2 except with
the consent of the DPP.
The question was: could the DPP be required to promulgate an offence-specific
policy identifying the facts and circumstances he would take into account
when deciding whether, on the assumption that there was sufficient evidence
to prosecute a defendant under section 2(1), it would not be deemed in the
public interest to do so?
The question arose because Ms Purdy, who suffered a debilitating illness, had
declared her wish to travel abroad to take her own life. Her claim was based
on her wish to know whether or not her husband would be prosecuted if he
aided and abetted her suicide.
The first issue was whether article 8.1 of the Convention was engaged.
In a similar case, R (Pretty) v DPP (The Times December 5, 2001;
[2002] 1 AC 800), the House of Lords found that Mrs Pretty’s article 8.1
rights were not engaged by the DPP’s refusal to undertake that he would not
consent to her husband’s prosecution if he assisted her in committing
suicide.
The European Court of Human Rights at Strasbourg found that her article 8.1
rights were engaged: Pretty v United Kingdom(Application No 2346/02)
((2002) 35 EHRR 1).
The decisions were clearly inconsistent. Ms Purdy had submitted that departure
from the general rule that the court was bound to follow the House of Lords
decision was justified because the same individual, the same facts, issues
and arguments were involved both in the House and in Strasbourg.
However, the House in Kay v Lambeth London Borough Council (The Times
March 10, 2006; [2006] 2 AC 465) gave the Court of Appeal very limited
freedom, only in the most exceptional circumstances, to override what would
otherwise be the binding precedent of the decision of the House.
The court was not seeking to be released from those strictures. The structure
of judicial precedent, designed over the years, had served the court well.
Bypassing or finding an alternative route around the decisions of the House,
on the basis of the jurisprudence of the Strasbourg court would, in the
ultimate analysis, be productive of considerable uncertainty.
Therefore, if the strictures were too tight, it was the House, who, if they
thought it appropriate, had to release the knot.
As it was, and in any event, the court could not bring the present case within
the required degree of exceptionality.
Ms Purdy had also argued that the principle of autonomy established in
Strasbourg in Pretty had been accepted as correct in several
subsequent House of Lords cases: R (Razgar) v Secretary of State for the
Home Department (The Times June 21, 2004; [2004] 2 AC 368), Ghaidan
v Godin-Mendoza (The Times June 24, 2004; [2004] 2 AC 557) and R
(Countryside Alliance) v Attorney-General (The Times November 29,
2007; [2008] 1 AC 719).
However, there was nothing in those decisions sufficient to indicate that
lower courts should no longer consider themselves bound by the judgment of
the House of Lords in Pretty.
It followed that the court must find that Ms Purdy’s article 8.1 rights were
not engaged.
In any event, the absence of a crime-specific policy relating to assisted
suicide did not make the operation and effect of section 2(1) unlawful nor
mean that it was not in accordance with the law for the purposes of article
8.2.
The DPP could not dispense with or suspend the operation of section 2(1), and
he could not promulgate a case-specific policy in the kind of certain terms
sought which would, in effect, recognise exceptional defences to the offence
which Parliament had not chosen to enact.
The court added one footnote. Although the discretion of the DPP in relation
to the promulgation of policy was effectively absolute, and our system did
not permit a court to interfere with his decision that an individual case
should be prosecuted, the court was not powerless. If the prosecution
amounted to an abuse of process, the court would dismiss it.
However, even if a defendant were to be convicted, but the circumstances were
such that in the judgment of the court, no penal sanction would be
appropriate, the court, exercising its own sentencing responsibilities would
order that the offender should be discharged, and might well question
publicly the decision to prosecute.
In other words, the court was part of the protective system which discouraged
and would prevent or extinguish the effect of any arbitrary or unprincipled
exercise by the DPP of his responsibilities.
Experience showed that although for those purposes the court was vested with
the necessary authority, the occasions when it was necessary for it to be
exercised were remote virtually to the point of extinction.
Notwithstanding the court’s sympathy for the dreadful predicament in which Ms
Purdy and her husband found themselves, the appeal had to be dismissed.
Solicitors: Bindmans LLP; Treasury Solicitor; Penningtons.
