Human rights—Assisted suicide—Prosecution policy

Lord Phillips, Lord Hope, Baroness Hale, Lord Brown and Lord Neuberger, 30 July 2009

• The interests of human rights law would not be well served if the House of Lords were to regard itself as bound by a previous decision as to the meaning or effect of a Convention right which was shown to be inconsistent with a subsequent Strasbourg decision.
   
• The Director of Public Prosecutions (DPP) is required to promulgate an offence-specific policy identifying the facts and circumstances which he would taken into account in deciding in a case involving an assisted suicide of a terminally ill person, whether or not to consent to a prosecution under s 2(1) of the Suicide Act 1961 (SA 1961).

Lord Pannick QC and Paul Bowen (instructed by Bindmans LLP) for the claimant. David Perry QC, Dinah Rose QC and Jeremy Johnson (instructed by the Treasury Solicitor) for the DPP. Charles Foster and Benjamin Bradley (instructed by Penningtons) for the intervener.

The claimant suffered from primary progressive multiple sclerosis, for which there was no known cure. She expected that there would come a time when her continuing existence would become unbearable, in which case she wished to end her life while physically able to do so.

By that stage, however, she would be unable to do so without assistance, so she wished to travel to a country where assisted suicide was lawful. Her husband was willing to assist her.

The claimant was concerned that her husband would be at risk of prosecution under s 2(1) of SA 1961. Section 10 of the Prosecution of Offences Act 1985 provided that the DPP should issue a code for Crown prosecutors giving guidance on general principles to be applied by them in determining, in any case, whether proceedings should be instituted.

The DPP declined to say what factors he would take into consideration in deciding whether or not it was in the public interest to prosecute those who assisted people to end their lives in countries where assisted suicide was lawful.

The claimant applied for judicial review seeking to compel the DPP to set out guidance as to when a prosecution for aiding and abetting suicide might be brought. The application was dismissed, as was her subsequent appeal, the Court of Appeal holding, inter alia, that it was bound to follow the decision of the House of Lords in R (on the application of Pretty) v DPP [2002] 1 All ER 1, notwithstanding that it was inconsistent with the judgment of the European Court of Human Rights in Pretty v United Kingdom [2002] 2 FCR 97. The claimant appealed to the House of Lords.

Lord Hope:

Article 8(1): respect for private life

The House of Lords was, of course, free to depart from its earlier decision and to follow that of the Strasbourg court. It was obvious that the interests of human rights law would not be well served if the house were to regard itself as bound by a previous decision as to the meaning or effect of a Convention right which was shown to be inconsistent with a subsequent decision in Strasbourg.

Otherwise the house would be at risk of endorsing decisions which were incompatible with Convention rights.

The difference between the house and the Strasbourg court on the application of Art 8(1) to Mrs Pretty’s case was on a narrow but important point. The guarantee under Art 8 prohibited interference with the way in which an individual led his life and it did not relate to the manner in which he wished to die.

His lordship himself had expressed a minority opinion to the contrary: “Her private life is engaged even where in the face of a terminal illness she chooses death rather than life.”

The Strasbourg court referred to that passage in its judgment with approval, and the rest of its reasoning was consistent with it.

His lordship would therefore depart from the decision of the House of Lords in Pretty and hold that the right to respect for private life in Art 8(1) was engaged in the instant case.

Article 8(2): in accordance with the law

The Convention principle of legality required the court to address itself to three distinct questions.

• The first was whether there was a legal basis in domestic law for the restriction.
   
• The second was whether the law or rule in question was sufficiently accessible to the individual who was affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he could regulate his conduct without breaking the law.
   
• The third was whether, assuming that these two requirements were satisfied, it was nevertheless open to the criticism that it was being applied in a way that was arbitrary because, for example, it had been resorted to in bad faith or in a way that was not proportionate.

The word “law” in that context was to be understood in its substantive sense, not its formal one.

The issue that the claimant raised was directed to s 2(4) of SA 1961 and to the way in which the DPP could be expected to exercise the discretion which he was given by that subsection whether or not to consent to her husband’s prosecution if he assisted her.

That was where the requirement that the law should be formulated with sufficient precision to enable the individual, if need be with appropriate advice, to regulate his conduct was brought into focus in the instant case: see Hasan v Bulgaria (App. No. 30985/96) [2000] ECHR 30985/96).

The director’s discretion

It had long been recognised that a prosecution did not follow automatically whenever an offence was believed to have been committed. The purpose of s 2(4) had to be understood in the light of that background. The basic reason for including in a statute a restriction on the bringing of prosecutions was that otherwise there would be risk of prosecutions being brought in inappropriate circumstances.

The following factors were all in play where consideration was being given to the question whether someone who was suspected of having committed an offence against s 2(1) should be prosecuted:

(i) consistency of practice;
 
(ii) to prevent abuse of the kind which might otherwise result in a vexatious private prosecution;

(iii) to enable account to be taken of mitigating factors; and (iv) to provide some central control of the use of the criminal law where it had to intrude into areas which were particularly sensitive or controversial. Consistency of practice was especially important in the context of the instant case.

The issue was without doubt both sensitive and controversial. Crown prosecutors, to whom the decision-taking function was delegated, needed to be given the clearest possible instructions as to the factors to which they had to have regard when they were performing it.

The police, who exercised an important discretion as to whether or not to bring a case to the attention of Crown prosecutors, also needed guidance if they were to avoid the criticism that their decision-taking was arbitrary.

Intervention

Important too was the general policy of the law that the attorney general and the DPP would only intervene to direct a prosecution where they considered it in the public interest to do so.

For anyone seeking to identify the factors which were likely to be taken into account in the case of a person with a severe and incurable disability who was likely to need assistance in travelling to a country where assisted suicide was lawful, the developments relied upon by the DPP fell short of what was needed to satisfy the Convention tests of accessibility and foreseeability.

DPP analysis

The DPP’s own analysis showed that, in a highly unusual and extremely sensitive case of the instant kind, the code offered almost no guidance at all. The question whether or not a prosecution was in the public interest could only be answered by bringing into account factors which were not mentioned there.

While the code constituted a valuable safeguard for the vulnerable, as it enabled the prosecutor to take into account the background of the case; and in most cases, its application would ensure predictability and consistency of decision-making, and people would know where they stand, the same could not be said for cases where the offence in contemplation was aiding or abetting the suicide of a person who was terminally ill or severely and incurably disabled, who wished to be helped to travel to a country where assisted suicide was lawful and who, having the capacity to take such a decision, did so freely and with full understanding of the consequences.

Gulf

There was already an obvious gulf between what s 2(1) said and the way which the subsection was being applied in practice in compassionate cases of that kind. Decisions in the instant area of law were highly sensitive to the facts of each case. They were also likely to be controversial.

However, they were not reasons for excusing the director from the obligation to clarify what his position was as to the factors which he regarded as relevant for and against prosecution in this special and carefully defined class of case.

Ulltimate decision

How he then went about the task had to be a matter for him, as also had to be the ultimate decision as to whether or not to prosecute. However, it should be possible to confine the class which required special treatment to a narrow band of cases with the result that the code would continue to apply to all those cases which fell outside it .

Policy

His lordship would therefore allow the appeal and require the DPP to promulgate an offence-specific policy identifying the facts and circumstances which he would take into account in deciding, in a case such as that which the claimant’s case exemplified, whether or not to consent to a prosecution under s 2(1) of SA 1961.

Lord Phillips, Baroness Hale, Lord Brown and Lord Neuberger delivered concurring opinions.