R (Purdy) v DPP (2009) UKHL 45

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(1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy.

Contents

Related judgments

R (Purdy) v DPP (2009) UKHL 45

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Headnote

CRIME — Aiding and abetting — Suicide — Terminally ill claimant proposing suicide in Switzerland — Husband to assist in travelling — Claimant seeking information from Director of Public Prosecutions as to factors to be taken into account in considering prosecution of husband — Right to respect for private life — “In accordance with the law” — Suicide Act 1961, s 2(1)(4) — Human Rights Act 1998, Sch 1, Pt I, art 8(1)(2)

Summary

The Director of Public Prosecutions should be required to promulgate a policy identifying the facts and circumstances to be considered in exercising his discretion under s 2(4) of the Suicide Act 1961 whether to prosecute a person such as the claimant’s husband for aiding and abetting an assisted suicide abroad.

The House of Lords so held in allowing an appeal by the claimant, Debbie Purdy, from the decision of the Court of Appeal (Lord Judge CJ, Ward and Lloyd LJJ) [2009] EWCA Civ 92 dismissing her appeal from the dismissal by the Divisional Court of the Queen’s Bench Division (Scott Baker LJ and Aikens J) [2008] EWHC 2565 (Admin) of her claim for judicial review of a decision of the Director.

LORD HOPE OF CRAIGHEAD said that the claimant suffered from primary progressive multiple sclerosis for which there was no known cure. If a time came when her continued existence was unbearable she would want to travel to a country, such as Switzerland, where assisted suicide was lawful. Her husband was willing to help her to travel. Although Professor Michael Hirst in “Suicide in Switzerland: Complicity in England” [2009] Crim LR 335 suggested that it was not an offence for a person to do acts in England and Wales that aided and abetted a suicide in a jurisdiction where it was lawful, there was at least a substantial risk that her husband’s acts would give rise to a prosecution under s 2 of the 1961 Act. She therefore sought information as to what factors the Director would take into consideration in deciding under s 2(4) whether a prosecution should be brought. He had, however, declined to say. She submitted that the prohibition in s 2(1) constituted an interference with her right to respect for her private life in art 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms that was not “in accordance with the law” as required by art 8(2) in the absence of an offence-specific policy by the Director setting out the factors that would be taken into account under s 2(4). Having considered Pretty v United Kingdom (2002) 35 EHRR 1 and R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800, his Lordship would depart from the decision in the latter case and hold that art 8(1) was engaged. The Convention principle of legality in art 8(2) required the court to consider, inter alia, whether the law or rule in question was sufficiently accessible to the person affected by it and sufficiently precise to enable a person to understand its scope and foresee the consequences of his actions so that he could regulate his conduct. The Code for Crown Prosecutors offered almost no guidance, and developments since the case had been before the Court of Appeal fell short of what was needed to satisfy the Convention tests of accessibility and foreseeability. The Director should be required to promulgate an offence-specific policy identifying the facts and circumstances that he would take into account.

LORD PHILLIPS, BARONESS HALE, LORD BROWN and LORD NEUBERGER delivered concurring opinions.

Other

R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening)

[2009] UKHL 45; [2009] WLR (D) 271

HL(E): Lord Phillips of Worth Matravers, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury: 30 July 2009

Appearances: Lord Pannick QC and Paul Bowen (instructed by Bindmans LLP) for the claimant; Dinah Rose QC and Jeremy Johnson (instructed by Treasury Solicitor) for the Director; Charles Foster and Benjamin Bradley (instructed by Penningtons Solicitors) for the intervener.

Reported by: Michael Gardner, barrister

See also

The Assisted suicide page contains links relating to the interim guidance published by the DPP in response to this judgment.

External links

Bailii

ICLR [2009] WLR (D) 271

BBC News: MS woman wins right-to-die fight, 30/7/09