News: assisted suicide challenge successful in Lords

Debbie Purdy has successfully appealed ([2009] UKHL 45) against the Court of Appeal’s decision that the refusal of the Director of Public Prosecutions to issue a published policy on  prosecutions of relatives who accompany their loved ones to Switzerland for the purpose of obtaining assistance in suicide does not violate her rights under Article 8 of the ECHR.

The House of Lords held, as the Director of Public Prosecutions conceded, that end-of-life decisions including decisions to seek assistance with suicide are covered by Article 8(1) (consistent with the decision of the European Court of Human Rights in Pretty v. UK, in which the Strasbourg Court found that Dianne Pretty’s Article 8(1) right to respect for her private and family life was engaged). The lead opinion comes from Lord Hope, whose selective quotation at [36] of his earlier decision in Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61, [100] is almost enough to convince the reader that he had dissented on this point in the Pretty case, although he does admit that he did not quite do so! This is a reversal for the House of Lords, as Lord Hope makes clear at [39].

In addition, the House of Lords held (contrary to the Court of Appeal’s conclusion ([63]-[79]) that the refusal of the Director of Public Prosecutions to issue a published policy on such prosecutions fell foul of the requirement in Article 8(2) that any limits on the right be “in accordance with the law”. In conclusion on this issue, Lord Hope wrote:

54.  The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind.

55.  The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

56.  I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act.

According to the BBC, “[t]he DPP, Keir Starmer, has said he would issue an interim policy by the end of September before putting the issue out to public consultation. Permanent policy will then be published next spring.”

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One Response to News: assisted suicide challenge successful in Lords

  1. […] the interim policy on which a team at the Crown Prosecution Service (CPS) are working following the House of Lords’ decision in Purdy v. DPP ([2009] UKHL 45) last […]

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