In need of assistance?

Debbie Purdy has multiple sclerosis and may, at some point, want her husband to help her travel to a jurisdiction where assisted suicide is permitted.

She asked the DPP to identify the factors he takes into account in deciding whether to give his consent to prosecution for the offence of assisting suicide contrary to the Suicide Act 1961 (SA 1961), s 2.

He declined. She sought judicial review. In R (on the application of Purdy) v DPP [2009] UKHL 45, [2009] All ER (D) 335 (Jul) the law lords granted her application and ordered the director to set out a policy identifying the facts and circumstances he will take into account in a case such as hers. Their lordships’ remarkable decision, reversing a strong Court of Appeal, invites at least three major criticisms.

Corrosion & usurpation

First, it corrodes SA 1961’s prohibition on assisting suicide by promoting its de facto—and ultimately de jure—decriminalisation. Lord Hope acknowledged that decriminalisation was a matter for Parliament, not the courts. His lordship was surely right: this controversial issue, involving ethics and social policy, is paradigmatically one for legislative decision. Purdy, however, undermines the legislature’s decision.

As Lord Judge CJ observed, delivering the judgment of the Court of Appeal: “Like this court the DPP cannot dispense with or suspend the operation of s 2(1) of the 1961 Act, and he cannot promulgate a case-specific policy in the kind of certain terms sought by Ms Purdy which would, in effect, recognise exceptional defences to this offence which Parliament has not chosen to enact.”(emphasis added).

The Lord Chief Justice could have gone further: Parliament has chosen not to enact exceptions. And it has done so after repeated and exhaustive consideration of the case for making exceptions. Indeed, only weeks before the law lords’ ruling, the House of Lords voted down, by a comfortable majority, an attempt by Lord Falconer to decriminalise assisting suicide in circumstances similar to those canvassed in Purdy. (HL Debates, vol 712, 7 July 2009, cols 595-634). Yet the law lords have required the DPP to formulate a policy which will—or at the very least may—do what Parliament has decided should not be done.

Were confirmation of the correctness of the Court of Appeal’s analysis needed, it has come from Lord Falconer himself: “The DPP will now have to set out in writing what his policy will be in prosecuting cases in enough detail for a person to know whether what he or she does will attract the attention of the law.

Requiring that degree of clarity means the DPP will in practice be carving out an exception to the terms of SA 1961, s 2(1).” (The Times, 31 July 2009). Again, Professor Conor Gearty has aptly observed: “Throwing everything on to the DPP is not only to ask too much of a single law officer, it is also to impose a legislative duty on him that is beyond his role as director of prosecutions.” (The Tablet, 8 August 2009).

Once assisting suicide is decriminalised de facto, the argument for its decriminalisation de jure becomes all the stronger. This is, of course, precisely the strategy motivating Ms Purdy and her fellow-campaigners in the pressure-group “Dignity in Dying”. They must have been as surprised as they were delighted at the contrast between the reluctance of the legislature to undermine the law and the readiness of the law lords to do so.

Consistent with Pretty

Secondly, not only does the decision appear to usurp the authority of Parliament; it seems difficult to reconcile with the earlier House of Lords decision in R (on the application of Pretty) v DPP [2001] UKHL 61, [2001] All ER (D) 417 (Nov).

True, Ms Purdy was not, like Mrs Pretty, seeking a guarantee that the DPP would not prosecute, but there seems little difference between a demand that the DPP not prosecute and a demand to know when he will not prosecute. As Lord Judge CJ said, what Ms Purdy was seeking was “the nearest thing possible to a guarantee” that her husband would not be prosecuted.

He added that her true objective would not be achieved unless she obtained “what in reality would amount either to immunity from prosecution or the promulgation of a policy which would effectively discount the risk of a prosecution in this particular case…”.

His lordship went on to observe (at [75]) that the DPP’s refusal to promulgate such a policy was “amply supported” by the House of Lords in Pretty, where Lord Bingham had pointed out that “whether or not the Director has the power to make such a statement he has no duty to do so…”.

Moreover, although the European Court of Human Rights (ECtHR) in Pretty held (unlike the House of Lords in that case) that the prohibition on assisting suicide infringed Mrs Pretty’s “right to privacy” under Art 8(1) (Pretty v United Kingdom [2002] 35 EHRR 1) it nevertheless upheld the prohibition under Art 8(2), indicating that the existence of prosecutorial discretion was a reason for so doing. (The law lords’ interpretation of Art 8(1) in Pretty was, in any event, sounder than that of the ECtHR: how can helping others kill themselves, any more than killing others, ever be a “private” matter?)

Even if Ms Purdy had a right to clarification of the DPP’s approach to cases like hers, it had surely been provided, as both the divisional court and Court of Appeal found, by the Code for Crown Prosecutors and the DPP’s explanation of his decision not to prosecute in the similar case of Daniel James (CPS, 9 December, 2008).

As Lord Neuberger acknowledged: “it can be said with some force that it must be pretty clear” to Ms Purdy and her husband how the DPP exercised his discretion in cases like theirs.

Slippery slope

Thirdly, can the policy the DPP has been ordered to formulate sensibly be confined to—as Lord Hope put it—“very special and carefully defined class of case” illustrated by Ms Purdy? Why is travel abroad legally relevant? Providing assistance to travel—whether to Geneva or Grimsby—is, like providing a bottle of pills, simply one of the myriad forms which assistance in suicide may take.

Again, why should the guidelines be limited to the “terminally ill or severely and incurably disabled” (per Lord Hope at [54])? Why not the chronically ill or moderately disabled? Not surprisingly, the DPP later announced that his policy would relate to all cases of assisting suicide. (Daily Telegraph, 4 August 2009).

Further, why should the guidelines not extend to the crime of murder? As Ms Purdy stated in her claim, she might want help to travel, not to Switzerland for assisted suicide, but to Belgium for euthanasia.

The nexus between the two crimes is reinforced by Lord Phillips’s opinion that helping someone to travel abroad to commit suicide may amount to complicity in murder. If the guidelines are to apply to handing someone a lethal dose, why not to pouring it down their throat, especially if they are physically unable to lift the vial to their lips?

Abuse of process

It is one thing for the courts to protect citizens from the arbitrary use of prosecutorial discretion resulting in abuse of process; quite another to require prosecutors to spell out the public interest criteria they will apply in relation to particular crimes, not least to particular instances of particular crimes.

Circumstances are infinitely variable, especially when a case is hypothetical. Ms Purdy may never be assisted in suicide, by her husband or anyone else. For all we (or the law lords) know, she may—like Mrs Pretty—end up dying a natural death in an English hospice.

And even if it could be known for certain that Ms Purdy’s husband will assist her in suicide, is it now the case that “A” may make use of the judicial process in order to minimise “B”’s risk of prosecution for the prospective commission of a serious crime? If so, are the courts not complicit in the planned evasion of the criminal law?

Further, what precedent does Purdy set? If A wants her clitoris sliced off (surely as much an incident of her “right to privacy” as taking a lethal dose or slashing her wrists) and wants her husband to assist her (whether by taking her abroad or by supplying her with a razor) will the courts at A’s behest order the DPP to spell out the factors he will apply in deciding whether to prosecute the husband under the Female Genital Mutilation Act 2003, s 2?

In short, Purdy seems unprecedented, unsound and unconstitutional.

Professor John Keown MA DPhil PhD, Kennedy Institute of Ethics, Georgetown University

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