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You are here: BAILII >> Databases >> European Court of Human Rights >> Pretty v United Kingdom - 2346/02 [2002] ECHR 427 (29 April 2002) URL: https://www.bailii.org/eu/cases/ECHR/2002/427.html Cite as: [2002] 35 EHRR 1, (2002) 35 EHRR 1, [2002] 2 FLR 45, [2002] 2 FCR 97, [2002] All ER (D) 286 (Apr), [2002] Fam Law 588, 12 BHRC 149, (2002) 66 BMLR 147, 35 EHRR 1, [2002] ECHR 427, 66 BMLR 147, [2002] ECHR 2346/02 |
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This judgment will become final in the circumstances set out in Article 44 § 2 of
the Convention.
In the caseof Pretty
v. the United Kingdom,
The European Court of
Human Rights (Fourth Section), sitting as a Chamber composed
of
:
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mrs E. Palm,
Mr J. Makarczyk,
Mr M. Fischbach,
Mr J. Casadevall,
Mr S. Pavlovschi, judges,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 19 March and 25 April 2002,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Mr C. Whomersley, Agent,
Mr J. Crow,
Mr D. Perry, Counsel,
Mr A. Bacarese,
Ms R. Cox, Advisers;
(b) for the applicant
Mr P. Havers QC,
Ms F. Morris, Counsel,
Mr A. Gask, Trainee solicitor.
The applicant and her husband, Mr B. Pretty
, were also present.
The Court heard addresses by Mr Havers and Mr Crow.
THE FACTS
I. THE CIRCUMSTANCES OF
THE CASE
"SuccessiveDirectors
– and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission
of
any criminal offence, no matter how exceptional the circumstances. ..."
– an order quashing the DPP's decision of
8 August 2001;
– a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought;
– a mandatory order requiring the DPP to give the undertaking sought; or alternatively
– a declaration that section 2 of
the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14
of
the Convention.
"1. No oneof
ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne
Pretty
, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope
of
recovery. She has only a short time to live and faces the prospect
of
a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time
of
her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support
of
her family, she wishes to enlist the help
of
her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1)
of
the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4)
of
the Act consent to the
prosecution of
Mr
Pretty
under section 2(1) if Mr
Pretty
were to assist his wife to commit suicide, the
Director of Public Prosecutions
has refused to give such an undertaking. On Mrs
Pretty
's application for judicial review
of
that refusal, the Queen's Bench Divisional Court upheld the
Director
's decision and refused relief. Mrs
Pretty
claims that she has a right to her husband's assistance in committing suicide and that section 2
of
the 1961 Act, if it prohibits his helping and prevents the
Director
undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the Convention, brought into force in this country by the Human Rights Act 1998, that Mrs
Pretty
's claim to relief depends. It is accepted by her counsel on her behalf that under the common law
of
England she could not have hoped to succeed.
2.. In discharging the judicial functions
of
the House, the appellate committee has the duty
of
resolving issues
of
law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits
of
the committee's role, since the wider issues raised by this appeal are the subject
of
profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are
of
great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some
of
those views; many others have been expressed in the news media, professional journals and elsewhere. The task
of
the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law
of
the land as it is now understood to be.
Article 2of
the Convention
3.. Article 2
of
the Convention provides: ...
The Article is to be read in conjunction with Articles 1 and 2
of
the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time
of
peace.
4.. On behalf
of
Mrs
Pretty
it is submitted that Article 2 protects not life itself but the right to life. The purpose
of
the Article is to protect individuals from third parties (the State and
public
authorities). But the Article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues
of
life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right
of
the individual. While most people want to live, some want to die, and the Article protects both rights. The right to die is not the antithesis
of
the right to life but the corollary
of
it, and the State has a positive obligation to protect both.
5.. The Secretary
of
State has advanced a number
of
unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language
of
the Article. The thrust
of
this is to reflect the sanctity which, particularly in western eyes, attaches to life. The Article protects the right to life and prevents the deliberate taking
of
life save in very narrowly defined circumstances. An Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid
of
another in bringing about one's own death. In his argument for Mrs
Pretty
, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as 'voluntary euthanasia', but regarded in English law as murder). The right claimed would be sufficient to cover Mrs
Pretty
's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands
of
a third party without giving any help to the third party and the State would be in breach
of
the Convention if it were to interfere with the exercise
of
that right. No such right can possibly be derived from an Article having the object already defined.
6.. It is true that some
of
the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis
of
what there is an express right to do. Article 11, for example, confers a right not to join an association (Young, James and Webster v. United Kingdom (1981) 4 EHRR 38), Article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law
of
Human Rights (2000), p. 974, para. 14.49) and I would for my part be inclined to infer that Article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid., p. 913, para. 13.76). It cannot however be suggested (to take some obvious examples) that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite
of
that which the Articles guarantee. Whatever the benefits which, in the view
of
many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention
of
a physician, these are not benefits which derive protection from an Article framed to protect the sanctity
of
life.
7.. There is no Convention authority to support Mrs
Pretty
's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v. United Kingdom (1998) 29 EHRR 245 the applicants complained
of
a failure by the United Kingdom to protect the right to life
of
the second applicant and his deceased father. At p. 305 the court said:
'115. The Court notes that the first sentenceof
Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking
of
life, but also to take appropriate steps to safeguard the lives
of
those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission
of
offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning
of
breaches
of
such provisions. It is thus accepted by those appearing before the Court that Article 2
of
the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts
of
another individual. The scope
of
this obligation is a matter
of
dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictabilityof
human conduct and the operational choices which must be made in terms
of
priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope
of
their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8
of
the Convention.'
The context
of
that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to Article 2 was entirely consistent with the interpretation I have put upon it.
8.. X v. Germany (1984) 7 EHRR 152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was
of
maltreatment contrary to Article 3
of
the Convention, considered below. The complaint was rejected and in the course
of
its reasoning the commission held (at pp. 153-154):
'In the opinionof
the Commission forced feeding
of
a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art. 3
of
the Convention. Under the Convention the High Contracting Parties are, however, also obliged to secure to everyone the right to life as set out in Art. 2. Such an obligation should in certain circumstances call for positive action on the part
of
the Contracting Parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody. When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's obligation under Art. 2
of
the Convention – a conflict which is not solved by the Convention itself. The Commission recalls that under German law this conflict has been solved in that it is possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries
of
a permanent character, and the forced feeding is even obligatory if an obvious danger for the individual's life exists. The assessment
of
the above-mentioned conditions is left for the doctor in charge but an eventual decision to force-feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests
of
the applicant when choosing between either respect for the applicant's will not to accept nourishment
of
any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity.'
In Keenan a young prisoner had committed suicide and his mother complained
of
a failure by the prison authorities to protect his life. In the course
of
its judgment rejecting the complaint under this Article the court said (at p. 29, para. 90):
'In the contextof
prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law
of
England and Wales, where inquests are automatically held concerning the deaths
of
persons in prison and where the domestic courts have imposed a duty
of
care on prison authorities in respect
of
those detained in their custody.'
Both these cases can be distinguished, since the conduct complained
of
took place when the victim was in the custody
of
the State, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation
of
the State to safeguard the life
of
a potential victim is enhanced when the latter is in the custody
of
the State. To that extent these two cases are different from the present, since Mrs
Pretty
is not in the custody
of
the State. Thus the State's positive obligation to protect the life
of
Mrs
Pretty
is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance
of
that proposition to acceptance
of
the assertion that the State has a duty to recognise a right for Mrs
Pretty
to be assisted to take her own life.
9.. In the Convention field the authority
of
domestic decisions is necessarily limited and, as already noted, Mrs
Pretty
bases her case on the Convention. But it is worthy
of
note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking
of
one's own life by one's own act and the taking
of
life through the intervention or with the help
of
a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789 at 831:
'No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why mostof
us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity
of
life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.'
The second distinction is between the cessation
of
life-saving or life-prolonging treatment on the one hand and the taking
of
action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale
of
the decisions in Bland. It was very succinctly expressed in the Court
of
Appeal in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, in which Lord Donaldson
of
Lymington MR said, at p. 46:
'What doctors and the court have to decide is whether, in the best interestsof
the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter
of
semantics. It is fundamental. At the other end
of
the age spectrum, the use
of
drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment
of
death. What can never be justified is the use
of
drugs or surgical procedures with the primary purpose
of
doing so.'
Similar observations were made by Balcombe LJ at p. 51 and Taylor LJ at p. 53. While these distinctions are in no way binding on the European Court
of
Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs
Pretty
to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach
of
the Convention by failing to permit it or would be in breach
of
the Convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held.
Article 3of
the Convention
10.. Article 3
of
the Convention provides: ...
This is one
of
the Articles from which a member State may not derogate even in time
of
war or other
public
emergency threatening the life
of
the nation: see Article 15. I shall for convenience use the expression 'proscribed treatment' to mean 'inhuman or degrading treatment' as that expression is used in the Convention.
11.. In brief summary the argument for Mrs
Pretty
proceeded by these steps.
(1) Member States have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjectionof
individuals to such treatment: A. v. United Kingdom (1998) 27 EHRR 611; Z v. United Kingdom [2001] 2 FLR 612 at 631, para. 73.
(2) Suffering attributable to the progressionof
a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D. v. United Kingdom (1997) 24 EHRR 423, at pp. 446-449, paras. 46-54.
(3) In denying MrsPretty
the opportunity to bring her suffering to an end the United Kingdom (by the
Director
) will subject her to the proscribed treatment. The State can spare Mrs
Pretty
the suffering which she will otherwise endure since, if the
Director
undertakes not to give his consent to
prosecution
, Mr
Pretty
will assist his wife to commit suicide and so she will be spared much suffering.
(4) Since, as the Divisional Court held, it is open to the United Kingdom under the Convention to refrain from prohibiting assisted suicide, theDirector
can give the undertaking sought without breaking the United Kingdom's obligations under the Convention.
(5) If theDirector
may not give the undertaking, section 2
of
the 1961 Act is incompatible with the Convention.
12.. For the Secretary
of
State it was submitted that in the present case Article 3
of
the Convention is not engaged at all but that if any
of
the rights protected by that Article are engaged they do not include a right to die. In support
of
the first
of
these submissions it was argued that there is in the present case no breach
of
the prohibition in the Article. The negative prohibition in the Article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v. United Kingdom, above; Rees v. United Kingdom (1986) 9 EHRR 56. While States may be obliged to protect the life and health
of
a person in custody (as in the case
of
Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands
of
private individuals other than State agents (as in A. v. United Kingdom, above), and the State may not take direct action in relation to an individual which would inevitably involve the inflicting
of
proscribed treatment upon him (D. v. United Kingdom (1997) 24 EHRR 423), none
of
these obligations can be invoked by Mrs
Pretty
in the present case. In support
of
the second submission it was argued that, far from suggesting that the State is under a duty to provide medical care to ease her condition and prolong her life, Mrs
Pretty
is arguing that the State is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording
of
the Convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue
of
Article 3. The decision how far the State should go in discharge
of
its positive obligation to protect individuals from proscribed treatment is one for member States, taking account
of
all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position.
13.. Article 3 enshrines one
of
the fundamental values
of
democratic societies and its prohibition
of
the proscribed treatment is absolute: D. v. United Kingdom (1997) 24 EHRR 423 at p. 447, para. 47. Article 3 is, as I think, complementary to Article 2. As Article 2 requires States to respect and safeguard the lives
of
individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity
of
such individuals. There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere
of
application; indeed, as is clear from X v. Germany above, a State may on occasion be justified in inflicting treatment which would otherwise be in breach
of
Article 3 in order to serve the ends
of
Article 2. Moreover, the absolute and unqualified prohibition on a member State inflicting the proscribed treatment requires that 'treatment' should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the
Director
or any other agent
of
the United Kingdom is inflicting the proscribed treatment on Mrs
Pretty
, whose suffering derives from her cruel disease.
14.. The authority most helpful to Mrs
Pretty
is D. v. United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts
of
a man in the later stages
of
AIDS. The Convention challenge was to implementation
of
the removal decision having regard to the applicant's medical condition, the absence
of
facilities to provide adequate treatment, care or support in St Kitts and the disruption
of
a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation
of
the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation
of
Article 3. In that case the State was proposing to take direct action against the applicant, the inevitable effect
of
which would be a severe increase in his suffering and a shortening
of
his life. The proposed deportation could fairly be regarded as 'treatment'. An analogy might be found in the present case if a
public
official had forbidden the provision to Mrs
Pretty of
pain-killing or palliative drugs. But here the proscribed treatment is said to be the
Director
's refusal
of
proleptic immunity from
prosecution
to Mr
Pretty
if he commits a crime. By no legitimate process
of
interpretation can that refusal be held to fall within the negative prohibition
of
Article 3.
15.. If it be assumed that Article 3 is capable
of
being applied at all to a case such as the present, and also that on the facts there is no arguable breach
of
the negative prohibition in the Article, the question arises whether the United Kingdom (by the
Director
) is in breach
of
its positive obligation to take action to prevent the subjection
of
individuals to proscribed treatment. In this context, the obligation
of
the State is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment
of
the European Court
of
Human Rights in Osman v. United Kingdom. The same principle was acknowledged by the court in Rees v. United Kingdom (1986) 9 EHRR 56 where it said in para. 37
of
its judgment at pp. 63-64:
'37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notionof
"respect" is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity
of
the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case.
These observations are particularly relevant here. Several States have, through legislation or by meansof
legal interpretation or by administrative practice, given transsexuals the option
of
changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions
of
varying strictness and retained a number
of
express reservations (for example, as to previously incurred obligations). In other States, such an option does not – or does not yet – exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin
of
appreciation.
In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interestof
the community and the interests
of
the individual, the search for which balance is inherent in the whole
of
the Convention. In striking this balance the aims mentioned in the second paragraph
of
Article 8 may be
of
a certain relevance, although this provision refers in terms only to "interferences" with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom.'
That was an Article 8 case, dealing with a very different subject matter from the present, but the court's observations were
of
more general import. It stands to reason that while States may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from State to State, more dependent on the opinions and beliefs
of
the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance
of
another without that other being exposed to the risk
of prosecution
.
Article 8of
the Convention
16.. Article 8
of
the Convention provides: ...
17.. Counsel for Mrs
Pretty
submitted that this Article conferred a right to self-determination: see X and Y v. Netherlands (1985) 8 EHRR 235; Rodriguez v. Attorney General
of
Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1)
of
the 1961 Act interferes with this right
of
self-determination: it is therefore for the United Kingdom to show that the interference meets the Convention tests
of
legality, necessity, responsiveness to pressing social need and proportionality: see R. v. A. (No. 2) [2001] 2 WLR 1546; Johansen v. Norway (1996) 23 EHRR 33; R. (P) v. Secretary
of
State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part
of
an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v. United Kingdom (1999) 29 EHRR 493 at p. 530, para. 89. The court must in this case rule whether it could be other than disproportionate for the
Director
to refuse to give the undertaking sought and, in the case
of
the Secretary
of
State, whether the interference with Mrs
Pretty
's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features
of
Mrs
Pretty
's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence
of
death, the absence
of
harm to anyone else, the absence
of
far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account
of
particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R. v. United Kingdom (1983) 33 DR 270 and Sanles v. Spain [2001] EHRLR 348.
18.. The Secretary
of
State questioned whether Mrs
Pretty
's rights under Article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on Article 8 founders on exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity
of
the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary
of
State also submitted that, if it were necessary to do so, section 2(1)
of
the 1961 Act and the current application
of
it could be fully justified on the merits. He referred to the margin
of
judgment accorded to member States, the consideration which has been given to these questions in the United Kingdom and the broad consensus among Convention countries. Attention was drawn to Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39 in which the criminalisation
of
consensual acts
of
injury was held to be justified; it was suggested that the justification for criminalising acts
of
consensual killing or assisted suicide must be even stronger.
19.. The most detailed and erudite discussion known to me
of
the issues in the present appeal is to be found in the judgments
of
the Supreme Court
of
Canada in Rodriguez v. Attorney General
of
Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs
Pretty
; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time
of
her choosing. While suicide in Canada was not a crime, section 241(b)
of
the Criminal Code was in terms effectively identical to section 2(1)
of
the 1961 Act. The appellant based her claims on the Canadian Charter
of
Rights and Freedoms which, so far as relevant, included the following sections:
'(1) The Canadian Charterof
Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
(7) Everyone has the right to life, liberty and securityof
the person and the right not to be deprived thereof except in accordance with the principles
of
fundamental justice.
(12) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.(15) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefitof
the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.'
The trial judge rejected Ms Rodriguez' claim, because (as his judgment was summarised at p. 144):
'It was the illness from which Ms Rodriguez suffers, not the State or the justice system, which has impeded her ability to act on her wishes with respect to the timing and mannerof
her death.'
He found no breach
of
section 12 and said:
'To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedomof
choice is inconsistent, in my opinion, with life, liberty and the security
of
the person.'
He also held that section 241 did not discriminate against the physically disabled.
20.. The British Columbia Court
of
Appeal held by a majority (at p. 148) that whilst the operation
of
section 241 did deprive Ms Rodriguez
of
her section 7 right to the security
of
her person, it did not contravene the principles
of
fundamental justice. McEachern CJ, dissenting, held (at p. 146) that there was a prima facie violation
of
section 7 when the State imposed prohibitions that had the effect
of
prolonging the physical and psychological suffering
of
a person, and that any provision that imposed an indeterminate period
of
senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle
of
fundamental justice.
21.. In the Supreme Court opinion was again divided. The judgment
of
the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course
of
his judgment Sopinka J said (at p. 175):
'As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur.'He continued (p. 175):
'I find more merit in the argument that securityof
the person, by its nature, cannot encompass a right to take action that will end one's life as security
of
the person is intrinsically concerned with the well-being
of
the living person.'
He then continued (at pp. 177-178):
'There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within securityof
the person, at least to the extent
of
freedom from criminal prohibitions which interfere with these. The effect
of
the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant
of
autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security
of
her person. The appellant's security interest (considered in the context
of
the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles
of
fundamental justice.'
He concluded (at p. 189) that:
'Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflectiveof
fundamental values at play in our society.'
With reference to section 1
of
the Canadian Charter, Sopinka J said (at pp. 192-193):
'As I have sought to demonstrate in my discussionof
section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving
of
assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory
of
the "slippery slope". The formulation
of
safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation
of
the clear standard set by the law will undermine the protection
of
life and will lead to abuse
of
the exception.'
He rejected the appellant's claims under sections 12 and 15.
22.. Lamer CJ dissented in favour
of
the appellant, but on grounds
of
discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not
of
section 15 but
of
section 7. She saw the case as one about the manner in which the State might limit the right
of
a person to make decisions about her body under section 7
of
the charter (p. 194). At p. 195 she said:
'In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the actof
assisting suicide. The effect
of
this is to deny to some people the choice
of
ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez
of
her security
of
the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles
of
fundamental justice, thereby violating section 7
of
the Charter ... It is part
of
the persona and dignity
of
the human being that he or she have the autonomy to decide what is best for his or her body.'
She held (p. 197) that
'it does not accord with the principlesof
fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act
of
killing without true consent.'
Cory J also dissented, agreeing with Lamer CJ and also McLachlin J.
23.. It is evident that all save one
of
the judges
of
the Canadian Supreme Court were willing to recognise section 7
of
the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs
Pretty
understandably places reliance in particular on the judgment
of
McLachlin J, in which two other members
of
the court concurred. But a majority
of
the court regarded that right as outweighed on the facts by the principles
of
fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security
of
the person appears only in Article 5 § 1, on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection
of
privacy, including the protection
of
physical and psychological integrity: X and Y v. Netherlands, above. But Article 8 is expressed in terms directed to protection
of
personal autonomy while individuals are living their lives, and there is nothing to suggest that the Article has reference to the choice to live no longer.
24.. There is no Strasbourg jurisprudence to support the contention
of
Mrs
Pretty
. In R. v. United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2
of
the 1961 Act constituted a violation
of
his right to respect for his private life under Article 8 and also his right to free expression under Article 10. In paragraph 13
of
its decision the commission observed:
'The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphereof
his private life in the manner elaborated above. While it might be thought to touch directly on the private lives
of
those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is
of
the opinion that the acts
of
aiding, abetting, counselling or procuring suicide are excluded from the concept
of
privacy by virtue
of
their trespass on the
public
interest
of
protecting life, as reflected in the criminal provisions
of
the 1961 Act.'
This somewhat tentative expression
of
view is
of
some assistance to Mrs
Pretty
, but with reference to the claim under Article 10 the commission continued (in para. 17
of
its decision at p. 272):
'The Commission considers that, in the circumstancesof
the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account
of
the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life
of
its citizens particularly those who belong to especially vulnerable categories by reason
of
their age or infirmity. It recognises the right
of
the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence
of
legislation, against the aiding and abetting
of
suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy.'
That conclusion cannot be reconciled with the suggestion that the prohibition
of
assisted suicide is inconsistent with the Convention.
25.. Sanles v. Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim
of
disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law
of
the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is
of
some interest that she based her claims on Articles 2, 3, 5, 9 and 14
of
the Convention but not, it seems, on Article 8.
26.. I would for my part accept the Secretary
of
State's submission that Mrs
Pretty
's rights under Article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition
of
assisted suicide in section 2
of
the 1961 Act infringes her Convention right under Article 8, it is necessary to consider whether the infringement is shown by the Secretary
of
State to be justifiable under the terms
of
Article 8 § 2. In considering that question I would adopt the test advocated by counsel for Mrs
Pretty
, which is clearly laid down in the authorities cited.
27.. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence
of
opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was
of
the clear opinion that aiding and abetting suicide should remain an offence (pp. 60-61, para. 135).
28.. Following the decision in Airedale NHS Trust v. Bland [1993] AC 789 a much more broadly constituted House
of
Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p. 11, para. 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p. 54, para. 262):
'As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the actof
a doctor or
of
any other person in this connection.'
The government in its response (May 1994, Cm 2553) accepted this recommendation:
'We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisationof
attempted suicide in 1961 was accompanied by an unequivocal restatement
of
the prohibition
of
acts calculated to end the life
of
another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives
of
the weak and vulnerable at risk.'
A similar approach is to be found in the Council
of
Europe's Recommendation 1418 (1999) on the protection
of
the human rights and dignity
of
the terminally ill and the dying. This included the following passage (at pp. 2-4):
'9. The Assembly therefore recommends that the Committeeof
Ministers encourage the member States
of
the Council
of
Europe to respect and protect the dignity
of
terminally ill or dying persons in all respects: ...
(c) by upholding the prohibition against intentionally taking the lifeof
terminally ill or dying persons, while:
(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2of
the European Convention on Human Rights which states that "no one shall be deprived
of
his life intentionally";
(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the handof
another person;
(iii) recognising that a terminally ill or dying person's wish to die cannotof
itself constitute a legal justification to carry out actions intended to bring about death.'
It would be by no means fatal to the legal validity
of
section 2(1)
of
the 1961 Act if the response
of
the United Kingdom to this problem
of
assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if the Dutch Termination
of
Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr
Pretty of
liability under Article 294
of
the Dutch Criminal Code if he were to assist Mrs
Pretty
to take her own life as he would wish to do.
29.. On behalf
of
Mrs
Pretty
counsel disclaims any general attack on section 2(1)
of
the 1961 Act and seeks to restrict his claim to the particular facts
of
her case: that
of
a mentally competent adult who knows her own mind, is free from any pressure and has made a fully informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act
of
humanity in the case
of
someone who, like Mrs
Pretty
, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers
of
enduring validity to it. First, 'Laws are not made for particular cases but for men in general.' Second, 'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction
of
that
public
wisdom by which the deficiencies
of
private understanding are to be supplied' (Boswell, Life
of
Johnson, Oxford Standard Authors, 3rd ed., 1970, at pp. 735, 496). It is for member States to assess the risk and likely incidence
of
abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R. v. United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p. 61, para. 135). The House
of
Lords Select Committee recognised the undesirability
of
anything which could appear to encourage suicide (report, p. 49, para. 239):
'We are also concerned that vulnerable people – the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure themof
our care and support in life.'
It is not hard to imagine that an elderly person, in the absence
of
any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.
30.. If section 2(1) infringes any Convention right
of
Mrs
Pretty
, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary
of
State has shown ample grounds to justify the existing law and the current application
of
it. That is not to say that no other law or application would be consistent with the Convention; it is simply to say that the present legislative and practical regime do not offend the Convention.
Article 9of
the Convention
31.. It is unnecessary to recite the terms
of
Article 9
of
the Convention, to which very little argument was addressed. It is an Article which protects freedom
of
thought, conscience and religion and the manifestation
of
religion or belief in worship, teaching, practice or observance. One may accept that Mrs
Pretty
has a sincere belief in the virtue
of
assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences
of
conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement
of
her right, the justification shown by the State in relation to Article 8 would still defeat it.
Article 14of
the Convention
32.. Article 14
of
the Convention provides: ...
Mrs
Pretty
claims that section 2(1)
of
the 1961 Act discriminates against those who, like herself, cannot because
of
incapacity take their own lives without assistance. She relies on the judgment
of
the European Court
of
Human Rights in Thlimmenos v. Greece (2000) 31 EHRR 411 where the court said (at p. 424, para. 44):
'The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoymentof
the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet
of
the prohibition
of
discrimination in Article 14. The right not to be discriminated against in the enjoyment
of
the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.'
33.. The European Court
of
Human Rights has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. As it was put in Van Raalte v. Netherlands (1997) 24 EHRR 503 at p. 516, para. 33:
'As the Court has consistently held, Article 14of
the Convention complements the other substantive provisions
of
the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment
of
the rights and freedoms" safeguarded by those provisions. Although the application
of
Article 14 does not presuppose a breach
of
those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit
of
one or more
of
the latter.'
See also Botta v. Italy (1998) 26 EHRR 241 at p. 259, para. 39.
34.. If, as I have concluded, none
of
the Articles on which Mrs
Pretty
relies gives her the right which she has claimed, it follows that Article 14 would not avail her even if she could establish that the operation
of
section 2(1) is discriminatory. A claim under this Article must fail on this ground.
35.. If, contrary to my opinion, Mrs
Pretty
's rights under one or other
of
the Articles are engaged, it would be necessary to examine whether section 2(1)
of
the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect
of
the criminalisation
of
suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition
of
the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members
of
the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack
of
success. But while the 1961 Act abrogated the rule
of
law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term
of
imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another
of
that right. The policy
of
the law remained firmly adverse to suicide, as section 2(1) makes clear.
36.. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy
of
the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage
of
considering whether or not to prosecute or, in the event
of
conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse
of
drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry. 'Mercy killing', as it is often called, is in law killing. If the criminal law sought to proscribe the conduct
of
those who assisted the suicide
of
the vulnerable, but exonerated those who assisted the suicide
of
the non-vulnerable, it could not be administered fairly and in a way which would command respect.
37.. For these reasons, which are in all essentials those
of
the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope
of
Craighead, I would hold that Mrs
Pretty
cannot establish any breach
of
any Convention right.
The claim against theDirector
38.. That conclusion makes it strictly unnecessary to review the main ground on which the
Director
resisted the claim made against him: that he had no power to grant the undertaking which Mrs
Pretty
sought.
39.. I would for my part question whether, as suggested on his behalf, the
Director
might not if so advised make a
public
statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10
of
the
Prosecution of
Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence
of
the Attorney General (by virtue
of
section 3
of
the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the
Director
has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the
Director
has the power to make such a statement he has no duty to do so, and in any event what was asked
of
the
Director
in this case was not a statement
of
prosecuting policy but a proleptic grant
of
immunity from
prosecution
. That, I am quite satisfied, the
Director
had no power to give. The power to dispense with and suspend laws and the execution
of
laws without the consent
of
Parliament was denied to the crown and its servants by the Bill
of
Rights 1688. Even if, contrary to my opinion, the
Director
had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means
of
investigating, the assertions made on behalf
of
Mrs
Pretty
. He received no information at all concerning the means proposed for ending Mrs
Pretty
's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction
of
the
Director
's duty and a gross abuse
of
his power had he ventured to undertake that a crime yet to be committed would not lead to
prosecution
. The claim against him must fail on this ground alone.
40.. I would dismiss this appeal."
"100. ... Respect for a person's 'private life', which is the only partof
Article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments
of
her life is part
of
the act
of
living, and she has a right to ask that this too must be respected. In that respect Mrs
Pretty
has the right
of
self-determination. In that sense, her private life is engaged even where in the face
of
terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means
of
an assisted suicide. I think that to do so would be to stretch the meaning
of
the words too far."
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Suicide, assisted suicide and consensual killing
"A person who aids, abets, counsels or procures the suicideof
another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years."
Section 2(4) provides:
"No proceedings shall be instituted for an offence under this section except by or with the consentof
the
Director of Public Prosecutions
."
"First it is established that the principleof
self-determination requires that respect must be given to the wishes
of
the patient, so that if an adult patient
of
sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle
of
the sanctity
of
human life must yield to the principle
of
self-determination ..." (Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864)
B. Domestic reviewof
the legislative position
"236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed viewsof
those witnesses who advocated voluntary euthanasia. Many
of
us have had experience
of
relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages
of
life were so disfigured that the loved one seemed already lost to us, or who were simply weary
of
life ... Our thinking must also be coloured by the wish
of
every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility
of
severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner
of
death is fitting to the life that has been lived.
III. RELEVANT INTERNATIONAL MATERIALS
"... that the Committeeof
Ministers encourage the member States
of
the Council
of
Europe to respect and protect the dignity
of
terminally ill or dying persons in all respects:
...
c. by upholding the prohibition against intentionally taking the life
of
terminally ill or dying persons, while:
i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2of
the European Convention on Human Rights which states that 'no one shall be deprived
of
his life intentionally';
ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the handof
another person;
iii. recognising that a terminally ill or dying person's wish to die cannotof
itself constitute a legal justification to carry out actions intended to bring about death."
IV. THIRD-PARTY INTERVENTIONS
A. Voluntary Euthanasia Society
B. Catholic Bishops' Conferenceof
England and Wales
THE LAW
I. ADMISSIBILITY OF
THE APPLICATION
II. ALLEGED VIOLATION OF
ARTICLE 2
OF
THE CONVENTION
"1. Everyone's right to life shall be protected by law. No one shall be deprivedof
his life intentionally save in the execution
of
a sentence
of
a court following his conviction
of
a crime for which this penalty is provided by law.
(a) in defenceof
any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escapeof
a person lawfully detained;
(c) in action lawfully taken for the purposeof
quelling a riot or insurrection."
A. Submissions of
the parties
1. The applicant
2. The Government
B. The Court's assessment
III. ALLEGED VIOLATION OF
ARTICLE 3
OF
THE CONVENTION
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Submissionsof
the parties
1. The applicant
2. The Government
B. The Court's assessment
IV. ALLEGED VIOLATION OF
ARTICLE 8
OF
THE CONVENTION
"1. Everyone has the right to respect for his private and family life ...2.. There shall be no interference by a
public
authority with the exercise
of
this right except such as is in accordance with the law and is necessary in a democratic society in the interests
of
national security,
public
safety or the economic well-being
of
the country, for the prevention
of
disorder or crime, for the protection
of
health or morals, or for the protection
of
the rights and freedoms
of
others."
A. Submissionsof
the parties
1. The applicant
2. The Government
B. The Court's assessment
1. Applicabilityof
Article 8 § 1
of
the Convention
2. Compliance with Article 8 § 2of
the Convention
V. ALLEGED VIOLATION OF
ARTICLE 9
OF
THE CONVENTION
"1. Everyone has the right to freedomof
thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in
public
or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2.. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests
of public
safety, for the protection
of public
order, health or morals, or for the protection
of
the rights and freedoms
of
others."
A. Submissionsof
the parties
1. The applicant
2. The Government
B. The Court's assessment
VI. ALLEGED VIOLATION OF
ARTICLE 14
OF
THE CONVENTION
"The enjoymentof
the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
A. Submissionsof
the parties
1. The applicant
2. The Government
B. The Court's assessment
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 29 April 2002, pursuant to Rule 77 §§ 2 and 3 of
the Rules
of Court.
Michael O'Boyle Matti Pellonpää
Registrar President