House of Lords
Published July 31, 2009
Regina (Purdy) v Director of Public Prosecutions; Society for the
Protection of Unborn Children intervening
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Baroness Hale
of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of
Abbotsbury
Speeches July 30, 2009
The Director of Public Prosecutions should be required to promulgate a policy
identifying the facts and circumstances that he would take into account in
considering whether to prosecute persons such as the claimant’s husband for
aiding and abetting an assisted suicide abroad.
The House of Lords allowed an appeal by Ms Debbie Purdy from the Court of
Appeal (Lord Judge, Lord Chief Justice, Lord Justice Ward and Lord Justice
Lloyd) (The Times February 24, 2009) who had dismissed her appeal
from the Queen’s Bench Divisional Court (Lord Justice Scott Baker and Mr
Justice Aikens) (The Times November 17, 2008; (2008) BMLR 231) who
had dismissed her claim for judicial review of a decision of the DPP dated
January 14, 2008.
Section 2 of the Suicide Act 1961 provides:
“(1) A person who aids, abets, counsels or procures the suicide of another ...
shall be liable on conviction on indictment to imprisonment for a terms not
exceeding 14 years.
“(4) No proceedings shall be instituted for an offence under this section
except by or with the consent of the Director of Public Prosecutions.”
Article 8 of the European Convention on Human Rights provides: “1 Everyone has
the right to respect for his private ... life...
“2 There shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law...”
Lord Pannick, QC and Mr Paul Bowen for Ms Purdy; Miss Dinah Rose, QC and Mr
Jeremy Johnson for the DPP; Mr Charles Foster and Mr Benjamin Bradley for
the intervener.
LORD HOPE said that Ms Purdy suffered from primary progressive multiple
sclerosis for which there was no known cure. She expected that there would
come a time when her continuing existence would become unbearable.
When that happened she would want to end her life while still physically able
to do so. But by that stage she would be unable to do so without assistance.
So she would want to travel to a country where assisted suicide was lawful,
probably Switzerland. Her husband was willing to help her make the journey.
In his article “Suicide in Switzerland: Complicity in England?” (\[2009\] Crim
LR 335) Professor Michael Hirst had suggested that it was not an offence for
a person to do acts in England and Wales that aided and or abetted a suicide
that subsequently took place in a jurisdiction where suicide was lawful.
However, there was a substantial risk that the acts that Ms Purdy wished her
husband to perform would give rise to a prosecution. It was the risk that
the DPP would consent to his prosecution that deterred her from taking that
course.
It was no part of the House’s function to change the law to decriminalise
assisted suicide. Changes were a matter for Parliament.
No one who had listened to the recent debate in the House of Lords on Lord
Falconer of Thoroton’s amendment to the Coroners and Justice Bill, in which
he had sought to define in law acts that were not capable of encouraging or
assisting suicide, or had read the report of the debate (Hansard (HL
Debates) July 7, 2009, cols 595-634), could be in any doubt as to the
strength of feeling on either side or the difficulties that such a change in
the law might give rise to.
The House’s function as judges was to say what the law was and, if it was
uncertain, to do what it could to clarify it.
Lord Pannick submitted that the prohibition in section 2(1) of the 1961 Act
constituted an interference to Ms Purdy’s right to respect for her private
life under article 8.1 of the Human Rights Convention and that that
interference was not “in accordance with the law” as required by article 8.2
in the absence of an offence-specific policy by the DPP setting out the
factors that would be taken into account by him and crown prosecutors in
deciding under section 2(4) whether it was in the public interest to bring a
prosecution.
A number of other people had already gone to countries where assisted suicide
was lawful, and those who had assisted them had not been prosecuted. The
House had been told that by the time of the hearing there had been 115 such
cases. Of those, only eight had been referred to the DPP for a decision on
prosecution.
In 2008 he had decided not to prosecute the parents and a family friend of
Daniel James (“Decision on Prosecution — The Death by Suicide of Daniel
James”, December 9, 2008). He had taken that decision personally, he had
given his reasons in writing and he had made those reasons available to the
public. That had been an exception. The public had not been told what the
reasons had been in the other cases so far referred to him.
Ms Purdy did not seek a guarantee of immunity from prosecution. She wanted to
be able to make an informed decision as to whether to ask for her husband’s
assistance. But the DPP had declined to say what factors he would take into
consideration in deciding whether it was in the public interest to prosecute
those who assisted in such cases.
That presented her with a dilemma. If the risk of prosecution was sufficiently
low she could wait until the last moment before making the journey. If it
was too high she would have to make the journey unaided to end her life
before she would otherwise wish to do so.
His Lordship considered Pretty v UK (Application No 2346/02) ((2002) 35 EHRR
1) and R (Pretty) v DPP (The Times December 5, 2002; \[2002\] 1 AC
800) and said that he would depart from the decision in the latter case and
hold that the right to respect for private life in article 8.1 was engaged
in the present case.
As to article 8.2, the Convention principle of legality required the court to
address three questions:
First, whether there was a legal basis in domestic law for the restriction.
Second, whether the law or rule in question was sufficiently accessible to the
individual affected by the restriction and sufficiently precise to enable
him to understand its scope and foresee the consequences of his actions so
that he could regulate his conduct without breaking the law.
Third, whether, assuming that the first two requirements were satisfied, the
restriction was being applied in a way that was arbitrary because, for
example, it was not proportionate.
The issue that Ms Purdy raised was directed to the way in which the DPP could
be expected to exercise his discretion under section 2(4) of the 1961 Act.
That was where the requirement that the law should be formulated with
sufficient precision to enable the individual, if need be with appropriate
advice, to regulate his conduct was brought into focus in the present case.
The Code for Crown Prosecutors was to be regarded, for the purposes of article
8.2 of the Convention, as forming part of the law in accordance with which
an interference with the right to respect for private life might be held to
be justified, but in a case such as the present it offered almost no
guidance.
Ms Purdy now had the guidance that could be obtained from the DPP’s decision
in the Daniel James case, and the DPP had created a Special Crimes Division
for the supervision of prosecutions of exceptional sensitivity or
difficulty. But those developments fell short of what was needed to satisfy
the Convention tests of accessibility and foreseeability.
The cases referred to the DPP would undoubtedly grow in number. Decisions were
likely to be highly sensitive to the facts of each case and to be
controversial, but his Lordship would not regard those as reasons for
excusing the DPP from the obligation to clarify his position as to the
factors that he regarded as relevant for and against prosecution.
He would allow the appeal and require the DPP to promulgate an
offence-specific policy identifying the facts and circumstances that he
would take into account.
Lord Phillips, Lady Hale, Lord Brown and Lord Neuberger delivered concurring
opinions.
Solicitors: Bindmans LLP; Treasury Solicitor; Penningtons.
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