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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Purdy, R (on the application of) v Director of Public Prosecutions & Ors  EWCA Civ 92 (19 February 2009)
Cite as: (2009) 106 BMLR 170, 106 BMLR 170,  UKHRR 1005,  EWCA Civ 92,  1 Cr App Rep 32,  1 Cr App R 32
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
LORD JUSTICE SCOTT BAKER AND MR JUSTICE AIKENS
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON. LORD JUSTICE WARD
THE RT HON. LORD JUSTICE LLOYD
| The Queen
(on the application of Debbie Purdy)
|- and -
|Director of Public Prosecutions
|Society for the Protection of Unborn Children
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Dinah Rose QC and Mr Jeremy Johnson (instructed by The Treasury Solicitor) for the respondent
Mr Charles Foster and Mr Ben Bradley (instructed by Penningtons) for the intervener
Hearing date: 3rd February 2009
Crown Copyright ©
Lord Judge CJ:
This is the judgment of the Court to which we have all contributed.
"(1) A person who aids, abets, counsels or procures the suicide of 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."
"(4) no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."
The real question which arises is this: can the Director of Public Prosecutions ("the DPP") be required to promulgate an offence-specific policy identifying the facts and circumstances he will take into account when deciding whether, on the assumption that there is sufficient evidence to prosecute a defendant under section 2(1), it will not be deemed in the public interest to do so? The question arises because the appellant, Ms Purdy, who suffers a debilitating illness, has declared her wish to travel abroad to take her own life. For the purposes of the forensic argument her claim is based on her wish to know whether or not her husband, Mr Puente, will be prosecuted if, in these circumstances, he aids and abets her suicide: in reality she wants to know that he will not.
Ms Purdy's predicament
"3. By 2001, I was permanently using a wheelchair and finding everyday tasks like showering or cooking more difficult, and often impossible, without help.
4. More recently in 2006 my arms became weaker and self-propelling my wheelchair became more difficult. Brushing my teeth was becoming impossible. I bought an electric toothbrush, but even that is difficult. I take painkillers everyday and that manages the pain in my swollen feet. I find it difficult to hold my body still and flop around. I have regular physiotherapy to try and use the right muscles and reduce painful spasms. I experience dry mouth from time to time. I experience choking fits. I am beginning to lose the ability to do many things for myself.
5. Throughout 2007 my condition has deteriorated further. For example I cannot cut things up. I drop things a lot. I am more prone to choking fits when I drink. I now need to use an electric wheelchair ..."
"7. My wish is to be able to ask for and receive assistance to end my life, should living it become unbearable for me. I wish to be able to make the decision to end my life while I am physically able to do so. I consider that this will probably mean either traveling to Zurich, Switzerland to avail myself of the services of Dignitas (as I do not wish to mess up any attempts, thereby making matters worse for myself), or to go to Belgium and avail myself of the Belgian Act on Euthanasia of 28th May 2002 as Belgium is relatively easy for me to travel to.
8. My husband has said he would assist me and if necessary face a prison sentence, but I am not prepared to put him in this position for a number of reasons. I love him and do not want him to risk ending up in prison I also do not want him to suffer more than necessary.
9. I want to avoid the situation where I am too unwell to terminate my life. I want to retain as much autonomy as possible. I want to make a choice about when the quality of my life is no longer adequate and to die a dignified death. This decision is of my own making. Nobody has suggested this to me or pressured me to reach this view. It is a decision I have come to of my own free will."
In short, Ms Purdy's condition has continued to deteriorate. The progress of her illness cannot be halted. She knows that eventually she will wish to bring her suffering to an end by committing suicide. However, she wishes to live for as long as possible, and to end her life only when it becomes utterly unbearable. But the harsh reality is if she lives that long she will be unable to end her own life without assistance. By then, it will be beyond her capability to do so.
"It is clear that Parliament had in mind the potential scope for disaster and malpractice in circumstances where elderly, infirm and easily suggestible people are sometimes minded to wish themselves dead. It is a crime, whether you pigeon-hole it under attempted murder or assisting a suicide. In terms of gravity it can vary from the borders of cold-blooded murder down to the shadowy area of mercy killing or common humanity " (R v Hough (1984) CAR (S) 406.)
Cases of assisted suicide, like all other criminal offences, vary hugely in their criminality. The context, usually, or at any rate frequently, is that the suicide will have been successful. It is the assistant who has survived. The mitigating features may indeed vary hugely, and in some, regrettably, there are none or virtually none. Not all cases are as sensitive as this one, and not all cases of assisted suicide represent the final act or acts of love or the culmination of a lifelong loving relationship.
"There is no such policy; and indeed, as you will be aware from the judgment of the House of Lords in the Dianne Pretty case, any such policy which would amount to a proleptic grant of immunity would be unlawful. As Lord Bingham said:
'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 letter stated that the only policy which the DPP applies is that set out in the Code for Crown Prosecutors applicable to the prosecution of all alleged offences, that none of his public policy statements "sets out circumstances in which a prosecution should never be brought for a given offence" and that he had no plans to issue further guidance in relation to policy for this offence. On 10th April 2008 Ms Purdy issued her claim for judicial review challenging the DPP's refusal to disclose his policy, or alternatively his failure to promulgate such a policy. It is the latter claim which is central to this appeal. She seeks a mandatory order requiring the DPP to promulgate and/or disclose his policy in relation to the circumstances in which he will consent (or not consent) to a prosecution under section 2(4) of the Suicide Act 1961; alternatively appropriate declaratory relief to the same effect.
The role of the Director of Public Prosecutions
"1(6) every Crown Prosecutor shall have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director.
(7) Where any enactment (whenever passed)
(a) prevents any step from being taken without the consent of the Director or without his consent or the consent of another; or
(b) requires any step to be taken by or in relation to the Director;
any consent given by or, as the case may be, taken by or in relation to, a Crown Prosecutor shall be treated, for the purposes of that enactment, as given by or, as the case may be, taken by or in relation to the Director."
"10(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them
(a) in determining, in any case
(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or
(ii) what charges should be preferred;
(2) The Director may from time to time make alterations in the Code."
"It has never been the rule in this country I hope it never will be that suspected criminal offences must automatically be the subject of prosecution."
This principle has never been doubted, and indeed was endorsed in Smedley's Ltd v Breed  A.C. 839.
"5.7 The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweighed those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution.
5.8 Crown prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
The following lists of some common public interest factors, both for and against prosecution, are not exhaustive. The factors that apply will depend on the facts in each case.
Some common public interest factors in favour of prosecution
5.9 The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if:
a a conviction is likely to result in a significant sentence;
b a conviction is likely to result in a confiscation or any other order;
c a weapon was used or violence was threatened during the commission of the offence;
d the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse);
e the defendant was in a position of authority or trust;
f the evidence shows that the defendant was a ringleader or an organiser of the offence;
g there is evidence that the offence was premeditated;
h there is evidence that the offence was carried out by a group;
i the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance;
j the offence was committed in the presence of, or in close proximity to, a child;
k the offence was motivated by any form of discrimination against the victim's ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics;
l there is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption;
m the defendant's previous convictions or cautions are relevant to the present offence;
n the defendant is alleged to have committed the offence while under an order of the court;
o there are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct;
p the offence, although not serious in itself, is widespread in the area where it was committed; or
q a prosecution would have a significant positive impact on maintaining community confidence.
Some common public interest factors against prosecution
5.10 A prosecution is less likely to be needed if:
a the court is likely to impose a nominal penalty;
b the defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order,
c the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
d the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
e there has been a long delay between the offence taking place and the date of the trial, unless:
the offence is serious;
the delay has been caused in part by the defendant;
the offence has only recently come to light; or0
the complexity of the offence has meant that there has been a long investigation;
f a prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;
g the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated.
h the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution or diversion solely because they pay compensation); or
i details may be made public that could harm sources of information, international relations or national security."
The case of Daniel James
"35. I remind myself that the factors identified in the Code in favour or against a prosecution are not exhaustive of the public interest factors that may be relevant in any given case. It is also important to keep in mind that Parliament has chosen to retain section 2(1) Suicide Act 1961 and a decision not to prosecute should not be taken merely because there are powerful mitigating circumstances. However, I consider that a factor that is otherwise relevant does not cease to be relevant merely because it overlaps with, or might be relevant to, mitigation. I have therefore focused intensely on the particular facts of his case.
a. An offence under section 2(1) Suicide Act 1961 is serious. That points in favour of a prosecution.
b. Neither Mark and Julie James nor the family friend influenced Daniel James to commit suicide. On the contrary, his parents tried relentlessly to persuade him not to commit suicide. Daniel was a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment. There is clear evidence that he had attempted to commit suicide on three occasions and that he would have made further attempts if and whenever an opportunity to do so arose. On the facts of this case, these are factors against prosecution.
c. Although the evidential test under the Code is met, a wide range of conduct of varying degrees of culpability is caught by section 2(1) Suicide Act 1961 and, although not truly minor acts, on the facts of this case the conduct of Mark James, Julie James and the family friend was more remote than the acts under consideration in Wallis and Hough and towards the less culpable end of the spectrum. That is a factor against prosecution.
d. Neither Daniel's parents nor the family friend stood to gain any advantage, financial or otherwise, by his death. On the contrary, for his parents, Daniel's suicide has caused them profound distress. That is a factor against prosecution.
36. Taking those factors into account and bearing in mind the observation of Lord Lane CJ in [and he here quotes the passage cited earlier in this judgment from Hough] I have decided that the factors against prosecution clearly outweigh those in favour. In the circumstances I have concluded that a prosecution is not needed in the public interest."
The proceedings in the Divisional Court
"Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(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."
In the careful judgment of the Court, Scott Baker L.J. and Aikens J. (as he then was) concluded, that the House of Lords in Pretty had concluded that Mrs Pretty's rights under Article 8 were not engaged at all because the right to private life related to the manner in which a person conducts his life, not the manner in which he departs from it. There was nothing in the present case to make it distinguishable in that regard.
" The Court is not prepared to exclude that this [her choice to avoid what she considers will be an undignified and distressing end to her life] constitutes an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention."
They concluded that this wording was "slightly curious" and "a good deal less firm than holding categorically that it would be an interference". They felt that "It may be that the expression covers beneath it differing opinions about the ambit of Article 8(1)." They further concluded that: " On the face of it there is some doubt whether the court definitively concluded that art 8(1) was engaged or whether the court decided to proceed on the assumption that it was, but determined the case by its conclusion that there was compliance with art 8(2)." The Court rejected the submission that the facts of the case were sufficiently extreme to fall within the exceptional circumstances in which the court is entitled to apply the European Court's decision rather than that of the House of Lords. The Court reflected furthermore, that: " the somewhat elliptical wording of the European Court at para 67 of Pretty leaves us in considerable doubt about the extent to which the Court might have disagreed with the House of Lords about the ambit of the rights created by Article 8(1)". The Court regarded itself as bound by the decision by the House of Lords in Pretty and followed it accordingly. The Court could find nothing in subsequent cases in the House of Lords which indicated that their Lordships had themselves departed from what they had held in Pretty and in the result concluded that Article 8(1) was not engaged on the facts of the present case.
The issues for this Court
1. Is Article 8(1) engaged?
2. Is a Court of Appeal bound to follow the decision of the House of Lords or the decision of the European Court in Pretty on the applicability of Article 8(1)?
3. In the absence of a published policy by the DPP as to the criteria by reference to which he will decide whether to consent to a prosecution against an individual who assists in suicide, in particular where the assistance is in making arrangements to travel abroad for the purposes of an assisted suicide which is lawful in the country where it occurs, is section 2 of the Suicide Act 1961 in accordance with law?
The first issue: is Article 8(1) engaged?
"13. 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 sphere of his private life. 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."
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body "
The decision of the House of Lords in Pretty v DPP
" 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 The Netherlands 8 EHRR 235. 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."
" Counsel submitted that this article  explicitly recognises the principle of the personal autonomy of every individual. He argues that this principle necessarily involves a guarantee as against the state of the right to choose when and how to die. None of the decisions cited in regard to article 8 assist this argument. It must fail on the ground that the guarantee under article 8 prohibits interference with the way in which an individual leads his life and it does not relate to the manner in which he wishes to die."
" Respect for a person's "private life", which is the only part of article 8(1) that 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 a right of self-determination. In that sense, her private life is engaged even where in the face of a terminal illness she seeks to choose death rather than life."
He rejected Mrs Pretty's argument because it was:
" 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."
" 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."
Lord Steyn's views were succinctly expressed:
" It is a sufficient answer [to the submission that the scope of section 2(1) was disproportionate to its aim] that there is a broad class of persons presently protected by section 2 who are vulnerable. It was therefore well within the range of discretion of Parliament to strike the balance between the interests of the community and the rights of individuals in the way reflected in section 2(1)."
On this aspect Lord Hope said:
" I would hold that the Director's refusal to give the undertaking was not disproportionate to the object of section 2(1), which is to avoid abuse and to protect the weak and the vulnerable."
The judgment of the European Court of Human Rights in Pretty
"1. The applicant
58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death.
2. The Government
1. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based."
Unsurprisingly, since the same counsel were retained, the arguments addressed to the Court were therefore exactly the same as the arguments addressed to the House of Lords.
"61. As the Court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.
62. The Government has argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8(1) and requiring justification in terms of the second paragraph. [The footnote cites the example of a refusal of medical treatment.]
63. While it might be pointed out that death was not the intended consequence of the applicant's conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8(1) of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life. [The footnote here refers to Lord Goff's speech in Airedale NHS Trust v Bland  AC 789, 864: "First it is established that that the principle of 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 respect 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."].
64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. As stated by Lord Hope, 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.
65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.
66. In Rodriguez v. the Attorney General of Canada, which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case from receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body.
67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8."
"68. An interference with the exercise of an Article 8 right will not be compatible with Article 8(2) unless it is "in accordance with the law", has an aim or aims that is or are legitimate under that paragraph and is "necessary in a democratic society" for the aforesaid aim or aims.
69. The only issue arising from the arguments of the parties is the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others."
"74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in the Rodriguez case, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. It is vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created.
76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.
78. The Court concludes that the interference in this case may be justified as "necessary in a democratic society" for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention."
"87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged. It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide.
89. there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable. Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse."
Is the decision of the House of Lords inconsistent with that of the European Court of Human Rights?
The second issue: are we bound to follow the decision of the House of Lords or are we at liberty to apply the ruling of the Strasbourg Court?
"28. The mandatory duty imposed on domestic courts by section 2 of the 1998 Act is to take into account any judgment of the Strasbourg Court and any opinion of the Commission. Thus they are not strictly required to follow Strasbourg rulings, as they are bound by section 3(1) of the European Communities Act 1972 and as they are bound by the rulings of superior courts in the domestic curial hierarchy. But by section 6 of the 1998 Act it is unlawful for domestic courts, as public authorities, to act in a way which is incompatible with a Convention right such as a right arising under article 8. There are isolated occasions (of which R v Spear  1 AC 734, paras 12 and 92, is an example) when a domestic court may challenge the application by the Strasbourg Court of the principles it has expounded to the detailed facts of a particular class of case peculiarly within the knowledge of national authorities. The 1998 Act gives it scope to do so. But it is ordinarily the clear duty of our domestic courts, save where and so far as constrained by primary domestic legislation, to give practical recognition to the principles laid down by the Strasbourg Court as governing the Convention rights specified in section 1(1) of the 1998 Act. That Court is the highest judicial authority on the interpretation of those rights, and the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles it lays down.
42. While adherence to precedent has been derided by some, at any rate since the time of Bentham, as a recipe for the perpetuation of error, it has been a cornerstone of our legal system. Even when, in 1966, the House modified, in relation to its own practice, the rule laid down in London Street Tramways Company Limited v London County Council  AC 375, it described the use of precedent as:
"an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules" Practice Statement (Judicial Precedent)  1 WLR 1234.
The House made plain that this modification was not intended to affect the use of precedent elsewhere than in the House, and the infrequency with which the House has exercised its freedom to depart from its own decisions testifies to the importance its attaches to the principle. The strictures of Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Limited  AC 1027, 1053-1055, are too well known to call for repetition. They remain highly pertinent.
43. The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency. The appellants, the First Secretary of State and the Court of Appeal in the Leeds case find a clear inconsistency between Qazi and Connors. The respondents and the Court of Appeal in the Lambeth case find no inconsistency. Some members of the House take one view, some the other. The prospect arises of different county court and High Court judges, and even different divisions of the Court of Appeal, taking differing views of the same issue. As Lord Hailsham observed ( AC 1027, 1054), "in legal matters, some degree of certainty is at least as valuable a part of justice as perfection." That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
44. There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.
45. To this rule I would make one partial exception. In its judgment on the Leeds appeal, paragraph 33, the Court of Appeal said:
"In D v East Berkshire Community NHS Trust  QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council  2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 had undermined the policy consideration that had largely dictated the House of Lords decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself."
When that case reached the House, no criticism of the Court of Appeal's bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law:  2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in paragraph 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save where the facts are of that extreme character."
"64. Where the Court of Appeal considers that an earlier decision of this House, which would otherwise be binding on it, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then (absent wholly exceptional circumstances) the court should faithfully follow the decision of the House, and leave it to your Lordships to decide whether to modify or reverse its earlier decision. To hold otherwise would be to go against what Lord Bingham decided. As a matter of principle, it should be for this House, not for the Court of Appeal, to determine whether one of its earlier decisions has been overtaken by a decision of the ECtHR. As to what would constitute exceptional circumstances, I cannot do better than to refer back to the exceptional features which Lord Bingham identified as justifying the Court of Appeal's approach in East Berkshire  QB 558: see Kay  2 AC 465, para 45."
"9. It is plain that "private life" is a broad term, and the court has wisely eschewed any attempt to define it comprehensively. In Pretty v United Kingdom (2002) 35 EHRR 1, 35-36, para 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that:
"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."
Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person."
His Lordship was there dealing with Article 8 in broad terms. We cannot discern from what Lord Bingham said that he was endorsing the proposition that the principle of personal autonomy extended to decisions as to the manner of ending one's life.
"132. The essence of the Convention, as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom (2002) 35 EHRR 1, 37, para 65."
That observation, no doubt, represents an acknowledgement of the fact that the European Court found that Mrs Pretty's Article 8(1) rights were engaged, but it sheds no light on the question which we have to decide.
"11. The HR claimants helpfully presented their article 8 case under four headings. The first was "private life and autonomy". The authorities principally relied on were Pretty From the court's judgment in Pretty the claimants drew recognition (para 61) that "private life" is a broad term, not susceptible to exhaustive definition, but covering the physical and psychological integrity of a person, sometimes embracing aspects of an individual's physical and social identity, protecting a right to personal development and the right to establish relations with others in the outside world, and extending to matters within (paras 61, 62) the personal and private sphere. The court held the notion of personal autonomy to be an important principle. The court was not prepared to exclude the possibility (para 67) that denial of a right to procure her own death was an interference with the applicant's right to respect for private life.
15. Despite the careful argument of Mr Gordon QC for the HR claimants, I am not persuaded that their claims can be brought within the scope of article 8 under any of the four heads relied on:
(1) Fox-hunting is a very public activity, carried out in daylight with considerable colour and noise, often attracting the attention of on-lookers attracted by the spectacle. No analogy can be drawn with the very personal and private concerns at issue in Pretty."
"54. I agree that the claims of the HR claimants cannot be brought within the scope of article 8 of the Convention. We are not concerned in this case with personal autonomy in the sense referred to in Pretty v United Kingdom (2002) 35 EHRR 1, paras 61 and 66. This case is not about the choices that a person makes about his or her own body or physical identity."
"94. In Pretty v United Kingdom (2002) 35 EHRR 1, 35, para 61, the European Court pointed out that "private life" in article 8(1) is "a broad term". The Court also said that the notion of "personal autonomy" is an important principle underlying the interpretation of the various guarantees, including the right to "personal development", in that aspect of article 8(1)."
He was however dealing with the ambit of Article 8 in terms, as he said in paragraph 101: " that article 8(1) protects those features of a person's life which are integral to his identity." He too, in our judgment, was not addressing the point before this Court.
"139. for my part [I] would hope to see the jurisprudence governing the scope of article 8 further developed by the Strasbourg Court. Why should it not encompass a broad philosophy of live and let live (or, in Mrs Pretty's case, let die: Pretty )? Why should people not be free to engage in whatever pursuits they wish pursuits, that is, central to their well-being, as hunting was recognised in the court below to be in the lives of some of these appellants ("a core part") unless there is good and sufficient reason (as, indeed, was found in Mrs Pretty's own case) to forbid it? Article 8's protection is recognised to extend to a right to identity and to personal development and, as Pretty first articulated, the notion of personal autonomy.
141. Naturally I have considered whether this House ought itself properly to construe and apply article 8(1) sufficiently widely to encompass at least some of these appellants. But I conclude not. It is one thing to say that member states have a margin of appreciation, perhaps a wide margin of appreciation, when it comes to striking any balance that falls to be struck under article 8(2) (or, for that matter, in respect of any other qualified right); quite another to say a comparable margin exists for considering whether the qualified right (here article 8(1)) is engaged in the first place. The reach of article 8 must be for the Strasbourg court itself to develop."
There it is true we see Lord Brown appearing to accept the Strasbourg decision in Mrs Pretty's case in relation to the engagement of her Article 8 rights.
The Article 8(2) issue: what is the impact of the absence of a published policy by the DPP in relation to the prosecution of an individual who participates in an assisted suicide?
"No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."
The requirement is said to be "integral" to the operation of section 2(1). Thus far, we agree. Without the consent of the DPP there will be no prosecution. He then focused our attention to the observations of Phillips L.J. (as he then was) in Dunbar v Plant  Ch 412, at 437, that:
"When the Act is considered it gives a clear indication that the circumstances in which the offence is committed may be such that the public interest does not require the imposition of any penal sanction. This, in my judgment, is the logical conclusion to be drawn from the "consent" provision."
"(a) secure consistency of practice in bringing prosecutions, e.g., where it is not possible to define the offence very precisely so that the law goes wider than the mischief aimed at or is open to a variety of interpretations;
(b) to prevent abuse or the bringing of the law into disrepute, e.g., with the kind of offence which might otherwise result in vexatious private prosecution ;
(c) to enable account to be taken of mitigating factors, which may vary so widely from case to case that they are not susceptible to statutory definition;
(d) to provide some central control over the use of criminal law when it has to intrude into areas which are particularly sensitive or controversial "
" a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable to the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to agree that is reasonable in the circumstances, the consequences which a given action may entail."
" those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, while certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
She suggested that the practical operation of these principles can be seen in two further decisions of the European Court of Human Rights, Goodwin v United Kingdom (1996) 22 EHRR 123 at para 33 and Steel v United Kingdom (1999) 28 EHRR 603 at para 55. She contended that the "accordance with the law" requirement under Article 8(2) did not require rigidity and that the public interest could not realistically be formulated in prescriptive terms.
"The fact that there is a duty under section 10 of the Prosecution of Offences Act 1985 on the DPP to issue a general code for Crown Prosecutors does not necessarily mean that he may not ever, in his absolute discretion, give guidance as to how the discretion will be exercised in regard to particular offences. I envisage that the occasions on which such statements would be appropriate and serve the public interest would be rare." (Our emphasis).
Lord Hope made the same point, observing that if the DPP had a specific policy in relation to cases of assisted suicide,
" he is entitled to promulgate it. I would hold that these matters lie entirely within the scope of the discretion which has been given to him by the Act." (Our emphasis).
"a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence".
The Court went on to record, at para 77, that there was nothing:
"disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable."