House of Lords
|Session 2001- 02
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|Judgments - The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party)
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Hobhouse of Wood-borough Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
THE QUEEN ON THE APPLICATION OF MRS DIANNE PRETTY
DIRECTOR OF PUBLIC PROSECUTIONS
SECRETARY OF STATE FOR THE HOME DEPARTMENT (INTERESTED PARTY)
ON 29 NOVEMBER 2001
 UKHL 61
LORD BINGHAM OF CORNHILL
1. No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed.
2. In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be.
Article 2 of the convention
3. Article 2 of the convention provides:
The article is to be read in conjunction with articles 1 and 2 of the Sixth Protocol, which are among the convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace.
4. On behalf of Mrs Pretty it is submitted that article 2 protects not life itself but the right to life. The purpose of the article is to protect individuals from third parties (the state and public authorities). But the article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The article acknowledges that right of the individual. While most people want to live, some want to die, and the article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the state has a positive obligation to protect both.
5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as "voluntary euthanasia", but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the state would be in breach of the convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an article having the object already defined.
6. It is true that some of the guaranteed convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association (Young, James and Webster v United Kingdom (1981) 4 EHRR 38), article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p 974, para 14.49) and I would for my part be inclined to infer that article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid, p 913, para 13.76). It cannot however be suggested (to take some obvious examples) that articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an article framed to protect the sanctity of life.
7. There is no convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p 305 the court said:
The context of that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to article 2 was entirely consistent with the interpretation I have put upon it.8.
X v Germany (1984) 7 EHRR 152 and Keenan v United Kingdom (App No 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was of maltreatment contrary to article 3 of the convention, considered below. The complaint was rejected and in the course of its reasoning the commission held (at pp 153-154):
In Keenan a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life. In the course of its judgment rejecting the complaint under this article the court said (at p 29, para 90):
Both these cases can be distinguished, since the conduct complained of took place when the victim was in the custody of the state, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation of the state to safeguard the life of a potential victim is enhanced when the latter is in the custody of the state. To that extent these two cases are different from the present, since Mrs Pretty is not in the custody of the state. Thus the state's positive obligation to protect the life of Mrs Pretty is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance of that proposition to acceptance of the assertion that the state has a duty to recognise a right for Mrs Pretty to be assisted to take her own life.
9. In the convention field the authority of domestic decisions is necessarily limited and, as already noted, Mrs Pretty bases her case on the convention. But it is worthy of note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking of one's own life by one's own act and the taking of life through the intervention or with the help of a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v Bland  AC 789 at 831:
The second distinction is between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale of the decisions in Bland. It was very succinctly expressed in the Court of Appeal in In re J (A Minor) (Wardship: Medical Treatment)  Fam 33, in which Lord Donaldson of Lymington MR said, at p 46:
Similar observations were made by Balcombe LJ at p 51 and Taylor LJ at p 53. While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the convention by failing to permit it or would be in breach of the convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held.
Article 3 of the Convention
10. Article 3 of the convention provides:
This is one of the articles from which a member state may not derogate even in time of war or other public emergency threatening the life of the nation: see article 15. I shall for convenience use the expression "proscribed treatment" to mean "inhuman or degrading treatment" as that expression is used in the convention.
11. In brief summary the argument for Mrs Pretty proceeded by these steps.
(1) Member states have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment: A v United Kingdom (1998) 27 EHRR 611; Z v United Kingdom  2 FLR 612 at 631, para 73.
(2) Suffering attributable to the progression of a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D v United Kingdom (1997) 24 EHRR 423, at pp 446-449, paras 46-54.
(3) In denying Mrs Pretty the opportunity to bring her suffering to an end the United Kingdom (by the Director) will subject her to the proscribed treatment. The state can spare Mrs Pretty the suffering which she will otherwise endure since, if the Director undertakes not to give his consent to prosecution, Mr Pretty will assist his wife to commit suicide and so she will be spared much suffering.
(4) Since, as the Divisional Court held, it is open to the United Kingdom under the convention to refrain from prohibiting assisted suicide, the Director can give the undertaking sought without breaking the United Kingdom's obligations under the convention.
(5) If the Director may not give the undertaking, section 2 of the 1961 Act is incompatible with the convention.
12. For the Secretary of State it was submitted that in the present case article 3 of the convention is not engaged at all but that if any of the rights protected by that article are engaged they do not include a right to die. In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the article. The negative prohibition in the article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v United Kingdom, above; Rees v United Kingdom (1986) 9 EHRR 56. While states may be obliged to protect the life and health of a person in custody (as in the case of Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than state agents (as in A v United Kingdom, above), and the state may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him (D v United Kingdom (1997) 24 EHRR 423), none of these obligations can be invoked by Mrs Pretty in the present case. In support of the second submission it was argued that, far from suggesting that the state is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the state is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of article 3. The decision how far the state should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member states, taking account of all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position.
13. Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute: D v United Kingdom (1997) 24 EHRR 423 at p 447, para 47. Article 3 is, as I think, complementary to article 2. As article 2 requires states to respect and safeguard the lives of individuals within their jurisdiction, so article 3 obliges them to respect the physical and human integrity of such individuals. There is in my opinion nothing in article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere of application; indeed, as is clear from X v Germany above, a state may on occasion be justified in inflicting treatment which would otherwise be in breach of article 3 in order to serve the ends of article 2. Moreover, the absolute and unqualified prohibition on a member state inflicting the proscribed treatment requires that "treatment" should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease.
14. The authority most helpful to Mrs Pretty is D v United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts of a man in the later stages of AIDS. The convention challenge was to implementation of the removal decision having regard to the applicant's medical condition, the absence of facilities to provide adequate treatment, care or support in St Kitts and the disruption of a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation of the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation of article 3. In that case the state was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as "treatment". An analogy might be found in the present case if a public official had forbidden the provision to Mrs Pretty of pain-killing or palliative drugs. But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr Pretty if he commits a crime. By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of article 3.
15. If it be assumed that article 3 is capable of being applied at all to a case such as the present, and also that on the facts there is no arguable breach of the negative prohibition in the article, the question arises whether the United Kingdom (by the Director) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment. In this context, the obligation of the state is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment of the European Court of Human Rights in Osman v United Kingdom. The same principle was acknowledged by the court in Rees v United Kingdom (1986) 9 EHRR 56 where it said in para 37 of its judgment at pp 63-64:
That was an article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while states may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from state to state, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution.
Article 8 of the convention