Case No: CO/3321/2001
Neutral Citation Number : [2001] EWHC Admin 788.
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 18th October 2001
B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE TUCKEY
THE RIGHT HONOURABLE LADY JUSTICE HALE
and
THE HONOURABLE MR. JUSTICE SILBER
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	THE QUEEN ON THE APPLICATION OF DIANNE PRETTY	Claimant	
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	DIRECTOR OF PUBLIC PROSECUTIONS
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant

Interested Party	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr P Havers QC and Ms F Morris (instructed by Liberty for the Claimant)
Mr D Perry and Mr R McCoubery (instructed by The Treasury Solicitor for the Respondent)
Mr J Crow (instructed by The Treasury Solicitor for the Interested Party)
Mr R Gordon QC and Mr J Bogle and Mr M Chamberlain 
(instructed by Conningsby's for the Interveners)

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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Tuckey

Introduction
1.	This is the judgment of the court  to which we have each contributed.
Mrs Diane Pretty, is terminally ill.  She wants to take her own life with help from her husband so that she may die with dignity at home and at a time of her choosing.  But section 2 (1) of the Suicide Act 1961 makes it a criminal offence for a person to aid, abet, counsel or procure the suicide of another.  Section 2 (4) of the Act says that no proceedings for this offence shall be instituted except by or with the consent of the Director of Public Prosecutions.  The DPP has been asked to undertake that he would not give his consent to Mr Pretty’s prosecution if he helped his wife to commit suicide,  but the DPP has said he cannot do so.  In these proceedings Mrs Pretty contends that Articles 2, 3, 8, 9 and/or 14 of the European Convention on Human Rights required the DPP to give the undertaking, but if he was not required to do so Section 2 (1) of the 1961 Act is incompatible with the Convention.
2.	The DPP says that the application is misconceived for a number of reasons but principally because he has no power to give the undertaking.  The Home Secretary has appeared as an interested party to contest the allegation of incompatibility.  Mrs Pretty’s application is also opposed by the Medical Ethics Alliance, the Society for the Protection of Unborn Children and Alert who have been given permission to intervene in the proceedings. 
The Facts 
3.	Mrs Pretty is 42 and has been married for twenty five years.  She lives with her husband, daughter and grand-daughter.  In November 1999 she was diagnosed with motor neurone disease.  MND is a progressive neuro-degenerative disease of the central nervous system.  Its cause is unknown.  The disease causes progressive muscle weakness affecting the voluntary muscles of the body.  Inevitably, the muscular weakness is progressive and severe weakness of the arms and legs and difficulty with swallowing and speaking develop.  Eventually the muscles involved in the control of breathing become involved.  Death usually occurs as a result of weakness of the breathing muscles in association with weakness of the muscles controlling speaking and swallowing leading to respiratory failure and pneumonia.
4.	Since Mrs Pretty was diagnosed with MND her condition has deteriorated rapidly so that in March 2000 she became confined to a wheelchair and in December 2000 her speech and swallowing became affected.  She no longer has any movement in her arms or legs and is fed by a tube.  Essentially she is paralysed from the neck downwards.  She has virtually no decipherable speech.  The disorder is now at an advanced stage and the prognosis, in particular as to her life expectancy, is very poor.  Her intellect, however, and her capacity to make decisions are unimpaired.
5.	No-one who hears or reads even this terse account of the facts could feel anything but the greatest sympathy for Mrs Pretty’s plight.  She is frightened and distressed at the suffering and indignity which she will have to endure before she dies if the disease is allowed to run its course.  Her difficulties are already very considerable and distressing in themselves (for example she drools saliva because of her difficulty in swallowing).  They will become progressively worse.  As a result, she strongly wishes to be able to control when and how she dies and so be spared the suffering and indignity which she will otherwise have to endure.  But for her disorder she would be able to take her own life without committing a criminal offence since Section 1 of the 1961 Act decriminalised suicide.  However, by reason of her disorder she now cannot do so without assistance.  What her solicitor has said about this is :
She requires and wishes the active assistance of a third party in carrying out some of the steps leading to her death although the last acts that lead directly to her death will be carried out by herself.  In essence Mrs Pretty’s wishes are that someone else, namely her husband Brian, assist her in committing suicide.
6.	This is the only evidence before the court as to what is proposed.  Although we pressed him for further information Mr Havers QC, for Mrs Pretty, said that this was all we needed to know.  However, anticipating arguments that palliative care would do much to relieve the suffering which Mrs Pretty fears, he said simply that Mrs Pretty has not been offered any such care.
7.	The request for the undertaking not to prosecute was made on behalf of Mrs Pretty by the legal officer of Liberty.  The letter described Mrs Pretty’s condition and what she wanted to do and made a number of legal submissions.  It ended by saying :
We very much hope that you can provide us with the undertaking we now seek in view of our client’s illness and the distress she is now suffering. 
	The reply of August 8 2001 on behalf of the DPP said :

I should like first to express my deepest sympathy to Mrs Pretty and to her family for the terrible suffering that she and they are having to bear.  
You have asked for an undertaking that the Director would not consent to the prosecution of Mr Pretty under Section 2 of the Suicide Act 1961, were he to assist his wife to commit suicide.  You have made a number of points in relation to the European Convention on Human Rights; the Human Rights Act, 1998; and the Code for Crown Prosecutors.  I have read your comments with care.  Successive Directors – and Attorneys General - have explained that they will not grant immunities that condone, require or purport to authorise or permit future commission of any criminal offence, no matter how exceptional the circumstances.  I must therefore advise you that the Director cannot provide the undertaking which you seek.
Whilst I believe that I have no choice but to refuse your request, I deeply regret any further suffering that this refusal may cause. 
These proceedings followed.
The claim against the DPP
8.	Mrs Pretty asks for the DPP’s decision in the letter of 8 August 2001 to be quashed and for a mandatory order requiring him to give the undertaking asked for, alternatively a declaration of incompatibility.  The DPP’s argument that he had no power to give the undertaking is developed in a number of ways which we will consider shortly.  He also contends that the letter contained no decision, alternatively, if it did, the decision is not amenable to judicial review.  We will deal with the latter point later but we propose to assume the former point in Mrs Pretty’s favour.  What is or is not a decision for judicial review purposes is sometimes a difficult question, which we do not need to resolve in this case.  The DPP says his letter was no more than a statement of law and practice; Mrs Pretty, that it is a decision to refuse to grant the undertaking.
Did the DPP have power to grant the undertaking ?
9.	The DPP contends that he has no statutory or other power to give any undertaking relating to future or proposed criminal conduct.  More specifically, he says that, in this case, he has been asked for what is in effect a pardon in advance of the commission of any criminal offence which he has no power to give.  He cannot disapply primary legislation such as Section 2 (1) of the 1961 Act.  We will examine these points in turn.
10.	The DPP’s contention that he could not give any undertaking relating to the way in which he would exercise his power to consent to a prosecution for an offence that had then not been committed requires an analysis of his powers; that entails also considering the role and duties of the DPP and how they have developed as well as the instigation of the prosecution process. 
11.	The starting point is that the Queen cannot appear in her own courts to support her prosecutorial interests in person, but she is represented by her attorney (Halsbury’s Laws of England vol 11(1) Fourth Edition Reissue: paragraph 636). He bears the title of Her Majesty’s Attorney General and his functions may also be performed by the Solicitor General (section 1 of the Law Officers Act 1997).  Before 1879, the prosecution of crime in England and Wales was “left entirely to private persons, or to public officers who act in their capacity of private persons and who have hardly any legal powers beyond those which belong to private persons”(Sir James Stephen- History of the Criminal Law (Vol. I, p. 493)).
12.	In their Eighth report published in1845, the Commissioners on Criminal Law criticised the unsatisfactory system of prosecuting crime and they recommended the appointment of public prosecutors.  The office of DPP was established to provide an independent prosecuting officer under the superintendence of the Attorney General, as a response to the maladministration of the criminal law when left solely in the hands of private citizens.  Thus, the office of DPP was created by the Prosecution of Offences Act 1879 (‘the 1879 Act’), the long title of which was: “an Act for more effectually providing for the Prosecution of Offences in England, and for other purposes”.
13.	Section 2 of the 1879 Act provided it to be the duty of the DPP under the superintendence of the Attorney General to “…institute, undertake or carry out such criminal proceedings (whether in the Court for Crown Cases Reserved, before Sessions of Oyer and Terminer or of the peace, before Magistrates and otherwise) and to give such advice and assistance to chief officers of police, clerks to justices and other persons… as may be for the time being prescribed by regulations under this Act or may be directed in a special case by the Attorney General”. The obligations and functions of the DPP under the 1879 Act only arose after a crime had been committed.
14.	For a period, the office of DPP was combined with that of Treasury Solicitor following the enactment of the Prosecution of Offences Act 1884 but the office of DPP once again became a separate appointment by virtue of the Prosecution of Offences Act 1908, which “was to dissociate the criminal law division of the conjoint appointment and to re-establish it as a separate office of D.P.P., but avoiding the mistake made in 1879 when the advisory and actual prosecuting functions were kept separate"(Edwards- The Law Officers of the Crown (1964) page 398).  There was, however, no suggestion of any statutory or other duty on the DPP to advise before an offence had been committed.
15.	Following the Second World War, the Prosecution of Offences Regulations 1946 were made pursuant to the 1879 and the 1908 Acts and the relevant part of them provided that:
It shall be the duty of the Director of Public Prosecutions to institute, undertake or carry on criminal proceedings in the following cases, that is to say –
a)	In the case of any offence punishable with death;
b)	in any case referred to him by a Government Department in which he considers that criminal proceedings should be instituted; and
(c)	in any case which appears to him to be of importance or difficulty or which for any other reason requires his intervention
16.	All the duties and functions of the DPP arose after an offence had been committed and this was also the position after the enactment of the Prosecution of Offences Act 1979, which consolidated certain enactments contained in earlier legislation. Section 2 re-defined the duties of the DPP by providing that:
2(1)  It shall be the duty of the DPP, under the superintendence of the Attorney General –
(a)	to institute, undertake or carry on such criminal proceedings (whether in the criminal division of the Court of Appeal, or in the House of Lords on appeal under Part II of the Criminal Appeal Act 1968 from the criminal division or from a divisional court of the Queen’s Bench Division of the High Court, or in such a divisional court, or before the Crown Court, or before a magistrates’ court, or otherwise); and
(b)	to give such advice and assistance to chief officers of police, justices’ clerks and other persons (whether officers or not) concerned in any criminal proceedings respecting the conduct of those proceedings,
as may be prescribed, or may be directed, in a special case, by the Attorney General.
17.	The office of the DPP is now governed by the Prosecution of Offences Act 1985 (‘the 1985 Act’) which provides that there should be a Crown Prosecution Service of which the DPP was head (section (1)). In Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] Q.B. 335, Steyn L.J. (with whom Rose and Morritt L.JJ. agreed) explained (at p. 346) the thrust of these changes, which were that:
The C.P.S. was established by the Prosecution of Offences Act 1985.  The philosophy of that measure was to separate the functions of the investigation of crime, that being the responsibility of the police, and the prosecution of offences, that being the responsibility of a single national prosecution service.  The C.P.S. is an autonomous and independent agency.  It reviews police decisions to prosecute.  It conducts prosecutions on behalf of the Crown.  The Attorney General in his non-political role as a Law Officer of the Crown appoints, and superintends the DPP of Public Prosecutions… the Attorney General, and through him the DPP of Public Prosecutions, are accountable to Parliament for what they do, or omit to do, in relation to criminal proceedings.
18.	To place the role of the DPP in context, it is necessary to explain that prosecutions commence by the laying of an information before a magistrate or by an accused being charged by a police officer exercising his rights as a private individual. Once instituted, prosecutions other than private prosecutions or those instituted by other prosecuting authorities are then taken over by the Crown Prosecution Service, which has a duty to do so. (See Consents to Prosecution, Law Com Consultation Paper No 149, paragraphs 2.3-2.9) It is only then that the DPP as head of the Crown Prosecution Service could become involved except where consent is needed and then he becomes involved before the private individual, whether police officer or not, can start criminal proceedings.
19.	The relevant duties of the DPP are now defined in section 3(2) of the 1985 Act, which provides that; -
It shall be the duty of the DPP –
(a)	to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force (whether by a member of that force or by another person);
(b)	to institute and have the conduct of criminal proceedings in any case where it appears to him that –
(i)	the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him; or
ii)	it is otherwise appropriate for proceedings to be instituted by him;
(c)	to take over the conduct of all binding over proceedings instituted on behalf of a police force (whether by a member of that force or by another person);
(d)	to take over the conduct of all proceedings begun by summons issued under section 3 of the Obscene Publications Act 1959 (forfeiture of obscene articles);
(e)	to give, to such an extent as he considers appropriate, advice to police forces on all matters relating to criminal offences;
(f)	to appear for the prosecution, when directed by the court to do so, on any appeal under –
(i)	section 1 of the Administration of Justice Act 1960 (appeal from the High Court in criminal cases);
(ii)	Part I or Part II of the Criminal Appeal Act 1968 (appeals from the Crown Court to the criminal division of the Court of Appeal and thence to the House of Lords); or
(iii)	section 108 of the Magistrates’ Court Act 1980 (right of appeal to the Crown Court) as it applies, by virtue of subsection (5) of section 12 of the Contempt of Court Act 1981, to orders made under section 12 (contempt of magistrates’ courts); and
(g)	harge such other functions as may from time to time be assigned to him by the Attorney General in pursuance of this paragraph.
20.	The 1985 Act also requires the DPP to give guidance for Crown Prosecutors in the form of a Code for Crown Prosecutors (section 10(1)); this provides guidance on whether proceedings for an offence should be instituted or be continued in any case as well as the charges to be preferred. There are two stages in the decision to prosecute (see Code for Crown Prosecutors, paragraph 4). First under the evidential test, Crown Prosecutors must be satisfied that there is enough evidence to provide a “realistic prospect of conviction” against a defendant. At the second stage, Crown Prosecutors have to consider “the public interest test”: a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. 
21.	The Director of Public Prosecutions and the CPS will only institute or continue with a prosecution when a case has passed both tests. The Code relates to how these decisions should be made by clear implication after, but not before, the offences have been committed. A fundamental feature of the statutory scheme and the Code for Crown Prosecutors is that a decision to prosecute is only made after consideration of the evidence and the public interest against known facts relating to the offence committed.  So this decision can only be taken after an investigation into a criminal offence has taken place. It is noteworthy that the role of the DPP in relation to prosecutions of assisting etc with suicide for breaches of Section 2(1) of the 1961 Act is to give his consent for the instituting of proceedings and so his role only arises after the suicide has occurred.
22.	 We can now state a number of significant features relevant to the present dispute and relating to the statutory framework within which the DPP operates. The CPS is an independent agency, which has the duty of prosecuting criminal offences in England and Wales. Neither the CPS nor its head, the DPP has any investigative functions or the resources to carry out investigations. Neither the CPS nor the DPP now has any common law or other power or duty other than those granted by the relevant statute, which now is the 1985 Act.
23.	It is of critical importance that each of these powers or duties conferred by Parliament, including significantly that in Section 2(4) of the 1961 Act, is concerned with the position after a criminal offence has been committed. In other words, prior to the commission of an offence, the DPP has no role that he is authorised to perform. So, the letter of 8 August 2001 was correct when it answered the request for the undertaking made on behalf of Mrs Pretty by explaining that the DPP could not give an undertaking that he would not prosecute Mrs Pretty’s husband.  In short, Parliament has not given the DPP the statutory power to give an undertaking of the kind sought by Mrs Pretty.  This makes it unnecessary to consider the other ways in which the point about the DPP’s powers were developed, but as they were fully argued we will deal with them.
24.	In support of his submission that the DPP does not have power to state that he will not consent to a prosecution for an offence that still has not been committed Mr Perry for the DPP analysed the machinery open to the DPP and the prosecution generally to stop a prosecution.  He explains first that the DPP could not discontinue proceedings under Section 23 of the 1985 Act or ask the Attorney General to submit  a nolle prosequi - that is, a direction that the prosecution be stayed - as there could be no prosecution to stop before an offence has been committed. So Mr Perry  says that what the DPP was in reality being asked to do in this case by Mrs Pretty’s solicitors was to give Mrs Pretty’s husband a pardon before the offence of assisting suicide had been committed and that while pardons can expunge past offences, they cannot be used to grant immunity from criminal responsibility for an offence yet to be committed and in the absence of known facts.  In support of this submission he relies on the conclusions of Lord Woolf giving the views of the Judicial Committee of the Privy Council, who explained with our emphasis added in Attorney General of Trinidad and Tobago v. Phillip [1995] 1 AC 396,411 that: -
A pardon must in the ordinary way only relate to offences which have already been committed….However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application  which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity
25.	Mrs Pretty disputes that the undertaking sought from the DPP amounts to a pre-offence pardon.  But the effect of what was sought in the undertaking amounts to such a pardon as, in common with a pardon, the undertaking sought would preclude the commencement of criminal proceedings against Mrs Pretty’s husband for the offence of assisting Mrs Pretty to commit suicide. We are unable to consider the request of Mrs Pretty for the DPP’s undertaking as anything other than a request for an anticipatory pardon, which could not have been given by the DPP for the reasons explained by Lord Woolf.  This is a further reason why the claim for judicial review of the DPP’s decision must fail. 

26.	Mr Perry’s next point is that what the DPP was in essence being asked to do was to disapply Section 2 (1) of the 1961 Act, but he says if the DPP had agreed, his decision could have been judicially reviewed. In support of this submission, he referred us to section 2 of the Bill of Rights 1689, which prevents anybody from not enforcing statutory provisions as it provides that:

And thereupon the said lords spirituall and temporall and commons pursuant to their respective letters and elections now being assembled in a full and free representative of this nation takeing into their most serious consideration the best meanes for attaining the ends aforesaid doe in the first place (as their auncestors in like cases have usually done) for the vindicating and asserting their auntient rights and liberties, declare –
That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegal.

27.	In  R. v. Commissioner of Police ex parte Blackburn [1968] 118,  the Court of Appeal stated that a party charged with enforcing the law, such as the defendant in that appeal and the DPP in the present application, is not entitled to adopt a policy of not enforcing it. Lord Denning MR said of the Commissioner (page 136) that :

He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide.  But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere.  Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value.  I should have thought that the court could countermand it.  He would be failing in his duty to enforce the law
Salmon LJ stated that the latter type of situation would amount to a clear breach of duty. Edmund Davies LJ agreed with both judgments. More recently, this court has held that a decision of the DPP can be judicially reviewed if he has arrived at “the decision not to prosecute… because of some unlawful policy” (R v. DPP ex parte C [1995] Cr.App R.136, 141).

28.	So if the DPP had given an undertaking of the kind requested by Mrs Pretty, he would have been at risk of having that decision judicially reviewed.  This militates against granting the relief sought by Mrs Pretty.  In other words, it cannot be right for the court to say that a particular decision should have been made, which itself was likely to be judicially reviewed. This is an additional reason why the present application for judicial review of the DPP’s decision must fail.

Is the DPP’s decision amenable to Judicial Review in any event ?

29.	Mr Perry contends that any decision of the DPP relating to the giving of consent in this particular case cannot be the subject to judicial review and he relies on the principle expressed by Lord Steyn in his speech in R. v. Director of Public Prosecutions, ex parte Kebilene [2000] A.C 326 at 371 F-G and at 371 G-H that: -
absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review”.  But the basis for his ruling was that “it is in my view vitally important that so far as the Courts are concerned, its (i.e. the Human Rights Act 1998) application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or an appeal.  The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings.  Such satellite litigation should rarely be permitted in our criminal justice system.  (371G-H).

30.	Mr Havers says that the approach of Lord Steyn is not applicable to the present case as the DPP is required to take a decision compatible with the Convention.  The DPP does not have the option to delay the decision on whether to consent to a prosecution of Mrs Pretty’s husband until the start of the criminal proceedings because Mrs Pretty’s rights under the Convention must be vindicated before she dies.  Accordingly Mr Havers submits that this is a wholly exceptional case.  

31.	We are unable to agree as this argument ignores the strong countervailing factors. First an offence has not been committed and so the facts, which might be relevant to the exercise of the discretion to consent, are not known. In R. v. Attorney General and the Director of Public Prosecutions ex parte7 Rushbridger (22 June 2001-[2001]EWHC Admin.529) this court refused to grant permission for judicial review as no offence had been committed and in those circumstances the defendants could not be expected to say whether the claimants would be prosecuted for them. By the same token, the DPP could not be expected to say whether he would consent to the institution of criminal proceedings against Mrs Pretty’s husband. Second, no information was put before the DPP explaining how Mrs Pretty proposed to commit suicide and what help her husband was proposing to give her and thus the DPP did not have sufficient material before him to enable him to reach a decision. 

32.	So if, contrary to what we have said, the DPP had the power to give the undertaking sought we do not think his decision not to do so would have been amenable to judicial review. 

The compatibility question
33.	As the DPP has no power to give the undertaking sought, we cannot give Mrs Pretty the remedy for which she has asked. Whatever the strength of the human rights arguments advanced, they could not properly be used to compel the DPP to act in this way. There is, however, an alternative way in which Mrs Pretty might have put her case before us which would not have been open to the same objections. She and her husband could have applied for a declaration that what they propose to do would be lawful. The courts have developed a practice of granting such declarations in cases involving people who are unable to make vital decisions for themselves: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. This is despite reservations about whether they should declare in advance that a proposed course of conduct would or would not be against the criminal law: see Airedale NHS Trust v Bland [1993] AC 798, in particular Lord Mustill at pp 888 to 890. The existing facts are known or can be ascertained, and a precise proposal put before the court: cf R v Commissioners of Inland Revenue, ex parte Bishopp (1999) 72 TC 322. It would be difficult to deny a person such as Mrs Pretty the benefit of that jurisdiction, simply because she does have the capacity to make up her own mind. She does not have the capacity to put that decision into effect. She and others need to know whether what they propose will or will not be lawful. 
34.	The declaratory jurisdiction has many advantages over judicial review in such cases. It avoids the problems facing the DPP and the court in ruling out a future prosecution on such sparse information as there is before us. It avoids the issue which has arisen in these proceedings, of whether Mrs Pretty is a ‘victim’ of the DPP's failure to give the undertaking not to prosecute her husband. The European Commission on Human Rights has held that section 2(1) of the 1961 Act does not infringe the Convention rights of the person assisting in suicide: see R v United Kingdom (1983) 33 D & R 270; 6 EHRR 140. We are inclined to accept that, if the result of the failure to allow Mr Pretty to help her were a breach of Mrs Pretty's Convention rights, then she is sufficiently directly affected by the act or omission complained of to be a 'victim' for this purpose: see Klass v Germany (1978) 2 EHRR 214. In declaration proceedings, she would clearly be directly affected by a failure to declare the proposal lawful. For that to be properly considered, a fully worked out plan has to be placed before the court and subjected to scrutiny by a proper contradictor. The court is able to assess the plan and make detailed alterations to it in order to secure its legality: see, eg, Re R (Adult: Medical Treatment) [1996] 2 FLR 99.     	
35.	On the face of it, of course, what is proposed here cannot be lawful. Section 2(1) of the 1961 Act is in uncompromising terms:
A person who aids abets counsel 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 terms not exceeding fourteen years.
But Mr Havers' argument is that this universal prohibition of assisted suicide, no matter what the circumstances, is incompatible with Mrs Pretty's rights under the Convention.  The court has therefore a duty, under section 3(1) of the Human Rights Act 1998, 'so far as it is possible to do so' to read and give effect to the provision in a way which is compatible with her Convention rights. The recent decision of the House of Lords in R v A (No 2) [2001] 2 WLR 1546 illustrates how far it is possible to go in interpreting apparently incompatible legislation in a compatible way. If this is not possible, but the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility under section 4(2) of the 1998 Act. From Mrs Pretty's point of view, this would be a much less satisfactory outcome, as it does not affect the validity, continuing operation or enforcement of the provision in question; nor does it bind the parties to the proceedings in which it is made: see s 4(6) of the 1998 Act.
36.	In the circumstances, it would be most unfair to Mrs Pretty, and to the careful arguments put before us by Mr Havers on her behalf, to avoid answering those questions simply because they do not have to be answered in the particular case which has been brought. They could arise in other proceedings and we should do our best to provide her with an answer on the material we have available. The short answer, in our view, is that section 2(1) of the 1961 Act is not incompatible with her Convention rights as it stands; there is therefore no need to interpret it in a different way; and no power to grant a declaration that it is incompatible.
The human rights arguments
37.	This case concerns the conflict between two of the fundamental rights possessed by all human beings: the right to life and the right to decide what will and will not be done with one's own body. English law gives greater priority to the first, as does the Convention.  English law curtails a person's right to bodily autonomy in the interests of protecting that person's life even against her own wishes. Thus deliberate killing, even with consent and in the most pitiable of circumstances, is murder: the mandatory penalty is life imprisonment. Killing in consequence of a suicide pact in which one dies and the other survives is manslaughter: the maximum penalty is life imprisonment. Helping a person to take her own life is the offence with which we are concerned: the maximum penalty is fourteen years' imprisonment. Taking one's own life is no longer a crime: see Section 1 of the 1961 Act.  A person who has the mental capacity to do so may make a deliberate choice not to accept life prolonging or even life sustaining medical treatment or care: see Airedale NHS Trust v Bland [1993] AC 789, eg Lord Goff at p 864C. This includes going on hunger strike: see Secretary of State for the Home Office v Robb [1995] Fam 127. Without clear evidence of such a choice, people are assumed to want their lives to continue. Failing to provide essential care for a person for whom one has or has assumed responsibility is manslaughter: see R v Stone and Dobbinson [1977] QB 354. But doctors cannot be obliged to provide medical treatment which would be futile or inappropriate, however much the patient or her carers want it: see Re J (A Minor)(Child in Care: Medical Treatment) [1993] Fam 15; also Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33; R v Cambridge and District Health Authority, ex parte B [1995] 1 WLR 898. The person's own wishes are therefore not determinative of what can or must be done. The crucial distinction is between 'killing and letting die'. English law puts helping someone to take her own life on the wrong side of the line, because, as Hoffman LJ said in Bland at 831, “the sanctity of life entails its inviolability by an outsider” (L.831).  The question is whether this is in breach of that person's human rights under the Convention.     
38.	Mr Havers relies principally on Articles 2 and 3 of the Convention, but also on Articles 8 and 9, and on the prohibition in Article 14 of discrimination in the enjoyment of the Convention rights. 
Articles 2 and 3
39.	Article 2 reads as follows:
1.	Everyone's right to life shall be protected by law. No-one shall be deprived of 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.
2.	Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a)	in defence of any person from unlawful violence;
(b)	in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)	in action lawfully taken for the purpose of quelling a riot or insurrection.
40.	Mr Havers first argued that the proposed undertaking would not be incompatible with Article 2. This article protects, not life itself, but the individual's right to life from attacks by third parties, including the State. It is for the individual to choose whether to live or die: she can refuse life sustaining treatment or even take active steps to end her life. The State has a positive obligation to take adequate measures to safeguard lives from attack: see Osman v United Kingdom (1998) 29 EHRR 245. But the Convention does not require the State to prohibit suicide or force treatment upon the unwilling. Nor does it require the State to prohibit 'passive euthanasia' as such. It is enough to punish manslaughter by neglect: see Widmer v Switzerland (App. No 20527/92, European Commission on Human Rights).
41.	Thus far, we agree. The Convention does not require the State to take positive steps to force life upon the unwilling. It does require the State to take positive steps to prevent people being 'deprived of life'. For a third person to take active steps deliberately to deprive another of life, even with the consent of the person thus deprived, is forbidden by the article. There is as yet nothing in Convention jurisprudence to suggest that this is a right which can be waived, rather the reverse. The protection of private life in Article 8 does not prevent English law prohibiting consensual sexual activities causing actual bodily harm: see Laskey v United Kingdom (1997) 24 EHRR 39. It is hard to think that the protection of life itself in Article 2 would prevent English law prohibiting the consensual taking of life. It is, however, possible to read Article 2 in such a way as to support a distinction between assisted suicide and active voluntary euthanasia. Taking steps which enable a person to take her own life may not amount to depriving her of life, for the act is hers and hers alone. It might therefore be open to the State, compatibly with the Convention, to relax the absolute rule in section 2(1) and permit assisted suicide in some cases. 
42.	But Mr Havers has to go further than that. He has to argue that the State is obliged to do so. He puts it with great simplicity. The right to life includes the right to die and the right to choose how and when to die. The corollary of life is death and thus the corollary of the right to life is the right to die at a time and a manner of one's own choosing. He cites no Convention jurisprudence in support of these propositions, for there is none. We cannot agree with them. As Mr Crow, for the Home Secretary, put it, death is not the corollary of life but its antithesis. Article 2 is all in terms of protecting life, at the very least permitting life to take its natural course without active intervention to bring it to a premature end. There is nothing in the article to suggest that the State is obliged to allow someone to help another person bring their own life to a premature end. 
43.	Indeed, if the article did have that effect, it would prevent any State party retaining the offence of suicide. It would also prohibit English law from allowing would-be suicides to be rescued. If a person is found with a suicide note and an empty bottle of pills, she could not be taken to hospital and her stomach pumped. If a person is found about to leap off Westminster Bridge, she could not be hauled back. It is one thing to say that a person may passively accept death by refusing life saving or life prolonging treatment. It is another thing to say that we must stand idly by and let her take her own life. In emergencies like that we should act first and ask questions later. Mr Crow makes the further point that any claim made by a person rescued from suicide would be a claim for 'wrongful life'. English law regards this as contrary to public policy: see McKay v Essex Area Health Authority [1982] QB 1166. In Secretary of State for the Home Office v Robb [1995] Fam 127, at p 416, Thorpe J (as he then was) recognised that there was a State interest in preventing suicide: he simply did not regard refusing food as committing suicide. We note, moreover, that the European Commission on Human Rights has upheld forcefeeding of a prisoner on hunger strike, on the basis that the State's obligation to secure the right to life of a person in its custody can prevail over considerations of inhuman or degrading treatment under Article 3: see  X v Federal Republic of Germany (1984) 7 EHRR 152.
44.	At one stage in the argument it appeared that Mr Havers had to go further still. If the State has a positive obligation to permit someone who wishes to die to do so, does not the State have an obligation to supply the means of taking their own life to someone who is unable to do so? Metaphorically, does not the State have to push the person who cannot jump? On reflection, however, his argument does not go as far as this. It simply entails an obligation on the State to refrain from prohibiting other people from helping. But for the reasons already stated, while we believe that the Convention would permit the State to do this, it does not require the State to do so.
45.	Article 3 reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
This is an unqualified right which permits of no derogation. The European Court of Human Rights has said that Articles 2 and 3 together enshrine 'one of the basic values of the democratic societies making up the Council of Europe': see McCann v United Kingdom (1996) 21 EHRR 97, para 147. As with Article 2, the State is obliged not only to refrain from such treatment itself, but also to take reasonable steps to ensure that people are not subjected to such treatment by others: see Costello-Roberts v United Kingdom (1995) 19 EHRR 112, A v United Kingdom (1998) 27 EHRR 611, and now Z v United Kingdom, App No 29392/95, 10 May 2001. Nor may the State itself take a step which will result in such treatment by others: see eg Chahal v United Kingdom (1997) 23 EHRR 413. Deporting a person dying of AIDS to a country where he will receive no treatment or proper care itself amounts to inhuman or degrading treatment: D v United Kingdom (1997) 24 EHRR 423.
46.	Mr Havers argues that Article 3 confers the right to die with dignity. The suffering and indignity endured by Mrs Pretty is similar to that endured by the AIDS victim: it is the result of the progress of a terminal disease. The State therefore has an obligation, not only to refrain from inflicting it upon her, but also to protect her from it. The only way in which she can be protected is to be allowed to die at the moment when she feels her life to be intolerable. By that stage, she will be unable to protect herself and needs help. The State must therefore permit her to receive this help as the only way of relieving the suffering she endures. 
47.	We would like to think that the State has a positive obligation to do what it can to prevent or alleviate the sufferings endured by people with terminal diseases. We would hope that all that can be done to make the remainder of their lives as comfortable and dignified as possible would be done. As yet, the Convention jurisprudence does not go so far. There are obligations to provide proper care and attention to prisoners and others deprived of their liberty and to prevent neglect or illtreatment by others: see Z v United Kingdom, above. If the State has already undertaken such care it should not be withdrawn, as would have been the effect of the deportation in D v United Kingdom, above, unless the patient wants it withdrawn.      
48.	Mr Havers' argument under Article 3 depends upon the existence of a right to die which we have already held is not conferred by Article 2. It is difficult, therefore, to spell it out of Article 3. In our view the right to human dignity which is enshrined in Article 3 is not the right to die with dignity, but the right to live with as much dignity as can possibly be afforded, until that life reaches its natural end. That is the right which was being protected in D v United Kingdom. This may well mean not taking futile and undignified steps to prolong life beyond its natural end: see Re J, above, and A NHS Trust v D [2000] 2 FLR 677. But that is very different from allowing people to take active steps to bring life to a premature end.
49.	These views are reflected in the Recommendation of the Parliamentary Assembly of the Council of Europe (Recommendation 1418, 1999) on the protection of the human rights and dignity of the terminally ill and dying:
5.	The obligation to respect and to protect the dignity of a terminally ill or dying person derives from the inviolability of human dignity in all stages of life. This respect of protection find their expression in the provision of an appropriate environment, enabling a human being to die in dignity. …….
9.	The Assembly therefore recommends that the Committee of Ministers encourage the members states of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects:
a. by recognising and protecting a terminally ill or dying person's right to comprehensive palliative care . . .
b. by protecting the terminally ill or dying person's right to self-determination . . .
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 member states . . .

	ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;

	iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.
  
50.	Article 3 contains within it no mechanism for balancing the various interests involved. Its interpretation must therefore reflect a proper balance between the interests of the individual and the interests of the community. Mr Havers argues that there are no community interests involved in this case. It is simply a matter for Mrs Pretty and her husband. She is already close to death. The only effect of what is proposed will be to shorten her life by a few weeks. We cannot agree that theirs are the only interests engaged. The community has a number of interests in protecting life: principal amongst these is the protection of those who are made vulnerable by the very effects of the illness from which they are suffering and of their families, friends and carers, who are also made vulnerable by the pain of watching, living with and trying to alleviate that suffering.

51.	We conclude that, far from having the effect contended for by Mr Havers, Articles 2 and 3 between them are aimed at the protection and preservation of life and the dignity of life, because of its fundamental value, not only to the individual but also to the community as a whole. It is to stand the whole purpose of these articles on its head to say that they are aimed at protecting a person's right to procure their own death. 

Articles 8 and 9   

52.	Article 8 reads as follows:

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.

53.	The advantage of Article 8 in this, as in many other contexts, is that it contains within it the mechanism for balancing the various interests engaged. Article 8.1 protects the moral and physical integrity of the individual: see X and Y v The Netherlands (1985) 8 EHRR 235. It is possible to spell out of the right to bodily integrity the right of a competent person to refuse life prolonging or even life sustaining treatment, unless there is a good reason to interfere with that right under Article 8.2. We are even prepared to assume, for the purpose of this argument, that it could include the right to be allowed to take one's own life, again unless there is good reason to interfere with it under Article 8.2. 

54.	It is accepted that section 2(1) of the 1961 Act has a legitimate aim. It might be thought that the legitimate aim is the preservation and protection of human life, and that this is sufficient in itself to justify interfering with self determination. But even if this is thought too paternalistic, there is a legitimate aim of protecting the vulnerable. There are two kinds of vulnerability: to pressures from outside and to pressures from within. The Criminal Law Revision Committee, in its Fourteenth Report, Offences against the Person (1980, Cmnd 7844, para 135) considered whether a distinction should be drawn between a person who 'assists another who has already formed a settled intention to kill himself' and another 'in our opinion a more heinous type of case, . . where a person persuades another to commit suicide.' The majority recommended that the offence be retained in its present form. Professor Glanville Williams dissented (para 135, footnote 1), for reasons very similar to those urged upon by Mr Havers now: he did not object to an offence of procuring suicide by threats, deception or persuasion, or of giving or advertising assistance with suicide for financial gain; but someone who helped another who had already decided to commit suicide should not be guilty of an offence, at any rate where the person assisted is seriously ill or disabled and the assistance consists merely in the provision of the means of suicide. In his view, problems connected with mercy killing did not arise, as the deceased took the decision and the deceased performed the act causing death. But there is also a view that the pressures from within are a good reason to protect people who might wish to take their own lives. 

55.	The question for us is whether the interference with the right of self determination which is constituted by the offence is proportionate to its legitimate aim: is it 'necessary in a democratic society'? We recognise that in some sensitive matters, where there is little common ground between the Contracting States, the European Court, as a supranational body, leaves a wide margin of discretion to individual State parties to determine what is appropriate to their own society: see Rees v United Kingdom (1986) 9 EHRR 56, para 37. We do not accept Mr Crow's argument that Mrs Pretty has to show that English law is outside the wide margin which would be allowed us in Strasbourg. In the national court, proportionality has to be judged according to national conditions. 

56.	It is, however, highly significant in considering the compatibility of any legislation in such a sensitive area that there is a good deal of common ground between the contracting States and indeed the rest of the democratic world. In most places, both assisted suicide and voluntary euthanasia are unlawful, although there are some exceptions. For example, under certain carefully defined circumstances, assisted suicide is lawful in the Netherlands and in Switzerland. It has also been legalised by statute in the State of Oregon. For less than a year it was legalised by statute in the Northern Territory of Australia. The Supreme Court of the United States of America has ruled that while terminally ill patients have no right to physician assisted suicide, physician assisted suicide is not itself unconstitutional: see Washington v Glucksberg (1997) 521 US 702; Vacco v Quill (1997) 521 US 793. The Supreme Court of Canada was divided five to four in Rodriguez v Attorney-General of Canada [1994] 2 LRC 136. We have found the judgments in that case particularly useful, as the facts were very close to those of this case and the law under consideration the same as the law in England and Wales, although the constitutional position is different. Sopinka J and the majority held that the prohibition of assisted suicide impinged upon the right to security of the person, because it deprived a helpless terminally ill person of autonomy over her person and caused her physical pain and psychological distress; but that it was not contrary to the principles of fundamental justice, being concerned both to uphold the value of life and to protect the vulnerable. McLachlin and L'Heureux-Dube JJ held that it was arbitrary and inconsistent with the objectives of the legislation permitting suicide. Lamer CJ held that it infringed the equality rights of those who were physically unable to commit suicide without help. Cory J held that dying was an integral part of living, so that the right to die with dignity should be as well protected as any other aspect of the right to life. We have already indicated why we do not share that particular view.  

57.	If we were satisfied that national conditions and public opinion in this country were no longer suited to the absolute ban contained in section 2(1) of the 1961 Act, we could go on to consider in some detail the safeguards which might be put in place to balance the individual's right to self-determination against the community's interest in upholding the value of life and protecting the vulnerable. One of the advantages of proceeding by way of an application for a declaration, based upon detailed proposals with supporting evidence, is that these would have provided a proper basis for considering such a scheme. 

58.	In Rodriguez v Attorney-General of Canada, above, Lamer CJ, for example, would have required (1) an application to a superior court; (2) evidence from a treating physician and independent psychiatrist that the applicant was competent and had made the decision freely and voluntarily, and one of the physicians must be present when the applicant committed suicide; (3) the physicians must also certify that she is and will become physically unable to commit suicide without help and that she knows and understands her continuing right to change her mind; (4) notice and access must be given to the regional coroner; (5) the applicant must be examined daily by one of the certifying physicians; (6) the permission would expire within 30 days; and (7) the act causing death must be that of the applicant herself and no-one else. Even these were criticised by the majority as being vague and uncertain, less stringent than the safeguards required in the Netherlands or proposed but rejected in Washington and California, and recognising a right going beyond those recognised or considered elsewhere in the world, because not restricted to the terminally ill. 

59.	This raises an important problem. If a blanket ban on assisted suicide is an unacceptable interference with autonomy and self-determination, why should an exception be limited to the terminally ill? It is not for third parties to make judgments about the quality of anyone else's life. Only that person can know what is or is not intolerable for them. The reason why we might wish to respect their right to die is that we wish to respect their right to their own values and choices, provided always that these are freely made. Yet, while there is some public support for allowing doctors to end the life of a person with a painful incurable disease if that person has requested it, there has been very little for allowing this if the person was not incurably sick: see British Social Attitudes: the 1986 Report.

60.	The Rodriguez case also illustrates why we could not possibly embark upon that exercise in this case. We are not being asked to approve physician assisted suicide in carefully defined circumstances with carefully defined safeguards. We are being asked to allow a family member to help a loved one die, in circumstances of which we know nothing, in a way of which we know nothing, and with no continuing scrutiny by any outside person. Even if we had good reason to think that the blanket ban on assisting suicide were no longer thought necessary in the democratic society of England and Wales, we would have no reason to think that to allow assisted suicide in such circumstances would be generally acceptable.

61.	But there is no reason to suppose that we have yet reached that point. All the indications are that democratic opinion in this country is not ready for change. The matter was extensively considered by the House of Lords Select Committee on Medical Ethics in 1994 (Session 1993-94, HL 21-I). They considered a large amount of evidence and arguments presented on the distinction between 'killing and letting die', for and against voluntary euthanasia, mercy killing, developments in palliative care and pain relief. They concluded that 'the right to refuse medical treatment is far removed from the right to request assistance in dying' (para 236). They did not believe that the arguments were sufficient reason to weaken society's prohibition of intentional killing (para 237). They could identify no circumstances in which assisted suicide should be permitted, nor did they see any reason to distinguish between the act of a doctor or any other person in this connection (para 262). In 1994, when discussing how far consent should be a defence in the criminal law, the Law Commission identified a Parliamentary ethos 'redolent of a paternalism that is softened at the edges when Parliament is confident that there is an effective system of regulatory control': see Consent in the Criminal Law, 1994, Law Commission Consultation Paper No 139, para 2.15. In 1995, the Law Commission published proposals on Mental Incapacity which aimed only to put on a legislative footing the existing law on refusing treatment, discussed above: see Mental Incapacity, 1995, Law Com No 231. Even this has proved controversial and the Government is understandably reluctant to legislate: see Making Decisions, 1999, Cm 4465, Introduction, para 20. Announcing the report, the Lord Chancellor stressed the Government's 'complete opposition to euthanasia, which is and will remain illegal'.     

62.	Although Mr Havers has argued that this should be seen as a case about assisted suicide and not about voluntary euthanasia, the arguments which he has presented in support of his case could also apply to voluntary euthanasia. Like the Select Committee on Medical Ethics, we are not persuaded that a distinction should now be drawn between them. We have not been presented with any evidence to suggest that the legitimate aims underlying section 2(1) of the 1961 Act are any less powerful now than they were then or that the section is a disproportionate response to those aims. We conclude, therefore, that there is no breach of Mrs Pretty's rights under Article 8.              

63.	Article 9 reads as follows:

1.	Everyone has the right to freedom of 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 in private, to manifest his religion or belief, in worship, teaching, practice or 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.

Mr Havers argues that Mrs Pretty is being denied her right to manifest her belief in assisted suicide because her husband will be unable to help her die when she wishes to do so. He recognises, however, that if she cannot succeed under the earlier articles, she is unlikely to succeed in this. We doubt whether the freedom to manifest one's beliefs can be taken so far. But in any event, if the interference is justified under Article 8 it must also be justified under Article 9.

Article 14

64.	Article 14 reads as follows:

The enjoyment of the rights and freedoms set forth in this 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.

Mr Havers argues that Mrs Pretty suffers discrimination in the enjoyment of her Convention rights because of her physical incapacity. Without that, she would be able to commit suicide herself. This is essentially the same argument as that accepted by Lamer CJ in Rodriguez v Attorney-General of Canada, above. 

65.	We accept that disability is a 'ground such as . . . ' for the purpose of Article 14. But Article 14, unlike the Canadian Charter, is not free-standing. It has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms set out in the Convention and its protocols. 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 of the case fall within the ambit of one or more of those provisions: see, eg, Botta v Italy (1998) 26 EHRR 241, para 39. For the reasons we have explained, we do not consider that the facts of this case fall within Articles 2 or 3. We have earlier assumed that they might fall within Article 8, even though there is no breach of that article. But we see the whole of the 1961 Act as serving the legitimate aims of upholding the value of life and protecting the vulnerable. The autonomy granted by decriminalising suicide and attempted suicide in section 1 enables a would-be suicide to change her mind and seek help without fear of prosecution. It may also aid recovery by removing or reducing stigma. As already explained, others are still permitted to intervene to prevent suicide. Permitting others to help bring it about is the antithesis of these aims. As Mr Gordon QC, for the intervenors, pointed out, it would be odd if the protection of the law ended at the point when a person needed it most, when she had become too weak to protect herself. We cannot therefore find that the scheme of the Act is incompatible with Article 14.

66.	We therefore conclude that section 2(1) of the 1961 Act is not incompatible with the Convention rights. It does not have to be interpreted so as to make it compatible under section 3(1), nor should it be declared incompatible under section 4 of the 1998 Act.    

Conclusion

67.	For the reasons given in this judgment Mrs Pretty’s claim for judicial review must be dismissed.  Before the Convention became part of English law there is no doubt that her claim would have failed. We do not think the position has changed since its incorporation.  Like everyone else who has read about and seen Mrs Pretty we feel desperately sorry for her and her husband and family but we think the decision we have reached is inescapable.