QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
| THE QUEEN ON THE APPLICATION OF DEBBIE PURDY
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN
Dinah Rose Q.C. and Jeremy Johnson (instructed by Treasury Solicitor) for the Defendant
Charles Foster (instructed by Penningtons) for the Intervener
Hearing dates: 2/3 October 2008
Crown Copyright ©
Lord Justice Scott Baker :
"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 14 years."
The subsection is widely phrased so as to encompass all cases, whatever the circumstances; it creates no exceptions. The Act does, however, provide in s.2(4) that no proceedings shall be instituted except by or with the consent of the DPP.
"Right to respect for private and family life."
"(1) Everyone has the right for 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 interest of national security, public safety, or the economic wellbeing of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The claim raises the following questions.
(i) whether the prohibition on aiding or abetting, counselling or procuring a suicide in s.2(1) of the Act engages art 8(1) of the ECHR; and
(ii) if so, whether the prohibition on assisted suicide meets the requirement of art 8(2) of the Convention that any interference with art 8(1) rights must be "in accordance with the law". The claimant's case is that can only be fulfilled if the DPP issues a public statement of policy as to the circumstances in which he will exercise his discretion to consent to prosecution under s.2(4) of the Act.
The Prosecution of Offences Act 1985 and the Code for Crown Prosecutors
"Without prejudice to any functions which may have been assigned to him in his capacity as a member of the service, every Crown Prosecutor shall have all the powers of the Director as to the institution and conduct of criminal proceedings but shall exercise those powers under the direction of the Director."
"Where any enactment (whenever passed) –
(a) prevents any step from being taken without the consent of the Director or without his consent and the consent of another; or
(b) requires any step to be taken in relation to the Director,
any consent given by or, as the case may be, step 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."
S.10(1), which is headed "Guidelines for Crown Prosecutors," provides:
"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; and
(b) in considering, in any case, representations to be made by them to any magistrates court about the mode of trial suitable for that case.
(2) the Director may from time to time make alterations in the Code".
"Each case is unique and must be considered on its own facts and merits. However, there are general principles that apply to the way in which Crown Prosecutors must approach every case."
"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 outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution."
And para 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."
(a) A conviction is likely to result in a significant sentence;
(e) The defendant was in a position of authority or trust;
(f) The evidence shows the defendant was a ringleader or 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 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 the offence is likely to be continued or repeated, for example by a history of recurring conduct.
(a) The court is likely to impose a nominal penalty;
(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. (This could conceivably be relevant in the event of an attempt to commit 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 a real possibility that it may be repeated.
"I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by s.10 of the Prosecution of Offences Act 1995. Plainly such a step would call for careful consideration and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give."
The decisions of the House of Lords and Strasbourg on art 8(1) in Pretty
"I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under article 8 are not engaged at all. If, however, that conclusion is wrong and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her Convention rights under article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of article 8(2)."
"Counsel submitted that (article 8) 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 that 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."
"The wording of the article does not help either. 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. But it is 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."
"However, even when the conduct poses a danger to health, or arguably where it is of a life threatening nature (our emphasis) 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 scope of article 8(1) and requiring justification in the terms of the second paragraph."
The court then said at para 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."
The critical passage in the judgment is at para 67 where the court says:
"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."
"76…..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. The Select Committee report indicated that between 1981 and 1992 in 22 cases in which "mercy killing" was an issue, there was only one conviction for murder, with a sentence for life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences. 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."
Should the Divisional Court follow the House of Lords or the European Court?
"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 possible 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."
He went on to explain that there was 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."
"……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(2002) 34 EHRR 3 ."
Has the House of Lords subsequently departed from its view on the ambit of art 8(1)?
"From the court's judgment in Pretty the claimants drew recognition (para 16) 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."
"Why should it not encompass a broad philosophy of live and let live (or, in Mrs Pretty's case, let die: Pretty v United Kingdom (2002) 35 EHRR 1 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 courts 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. It encompasses almost any aspect of a person's sexuality and a good deal else that is clearly personal. But why should respect for private life not encompass also wider concepts of self-fulfilment?"
Then at 781 C para 41:
"Naturally I have considered whether this House ought itself properly to construe and apply article 8(1) sufficiently widely to encompass some at least 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, 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 that a comparable margin exists for determining 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."
"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."
Conclusion on the art 8(1) point
"The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed".
"In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.
The level of precision required by domestic legislation – which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed".
Conclusion on art 8(2)