Judgments - R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)

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48.  The current version of the Code was published in November 2004. It applies to all criminal offences and makes no distinction between different offences. It sets out two tests for a decision whether to prosecute. These are the “Full Code Test” and the “Threshold Test". The latter test is applied only at an early stage in the investigation, so for present purposes it is only the Full Code Test that is relevant. Para 5.1 of the Code states that the Full Code Test has two stages. The first is consideration of the evidence. If the case passes the tests that are to be applied at the evidential stage, Crown Prosecutors must then consider whether a prosecution is needed in the public interest. Para 5.7 states that 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 to divert the person from prosecution. Para 5.8 tells Crown Prosecutors that they must balance factors for and against prosecution carefully and fairly and that the factors that apply will depend on the facts in each case. Para 5.9 then sets out what it describes as some common public interest factors in favour of prosecution. There are seventeen factors in this list, subparas (a) to (q). Para 5.10 sets out what it describes as some common public interest factors against prosecution. There are nine factors in this list, subparas (a) to (i). I shall not set them out. The details are given in the Court of Appeal’s judgment, para 16, where paras 5.9 and 5.10 are quoted in full.

49.  As the Court of Appeal observed in para 17, it is perfectly obvious that many of the factors in these lists can have no relevance in a case of assisted suicide. This point is reinforced by the Director’s decision in the case of Daniel James. In para 28 of that decision he reminded himself that para 5.7 of the Code states that a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, adding that the more serious the offence the more likely it is that a prosecution will be needed in the public interest. He then said this:

“29. I consider that the offence of aiding and abetting the suicide of another under section 2(1) Suicide Act 1961 is unique in that the critical act - suicide - is not itself unlawful, unlike any other aiding and abetting offence. For that reason, I have decided that many of the factors identified in the Code in favour or against a prosecution do not really apply in this case (I include within this the factors identified in paras 5.9 (b), (c), (d), (e), (j), (k), (m), (n) and (p) and 5.10 (b), (c), (d), (e), (f), (g), (h) and (i) of the Code).”

50.  In para 30 of the decision the Director said that, although para 5.9(a) - whether a conviction was likely to result in a significant sentence - was relevant, it was not a factor in favour of prosecution in Daniel James’s case. In para 31 he said that although Daniel James’s parents played some part in the co-ordination of the arrangements, they were not “ring-leaders” or “organisers” in the sense meant by para 5.9(f). Nor was the offence pre-meditated in the sense meant by para 5.9(g) or a “group” offence in the sense meant by para 5.9(h). That left paras 5.9(e), (i), (l) and (q): that the defendant was in a position of authority or trust, that the victim of the offence was vulnerable, that there was a marked difference between the actual or mental ages of the defendant and the victim and that a prosecution would have a significant positive impact on maintaining community confidence. On the facts of that case, paras 5.9(e), (i) and (l) did not apply, and he did not think that a prosecution would be likely to have a significant positive impact on community confidence. As for the facts against prosecution, para 5.10(a) was relevant as the penalty in that case was likely to be nominal. But he did not think that much weight could be attached to the remaining factor, para 5.10(c), that the offence was the result of a mistake or a misunderstanding. The result of this careful and commendably frank analysis was that very few, if any, of the factors listed in the Code were of any real assistance.

51.  The Director then reminded himself that the factors listed in the Code were not exhaustive of the public interest factors that may be relevant in any given case. Focussing on the particular facts of the case, he noted (a) that an offence under section 2(1) of the 1961 Act is serious, (b) that neither his parents nor his family friend influenced Daniel James to commit suicide - on the contrary his parents tried relentlessly to persuade him not to do so, (c) the conduct of his parents and the family friend was towards the less culpable end of the spectrum, and (d) that neither his parents nor the family friend stood to gain any advantage, financial or otherwise by his death - on the contrary, for his parents, it caused them profound distress. Taking those factors into account he decided that a prosecution was not needed in the public interest.

52.  Events have moved on since the current version of the Code was published. The Director has created a Special Crimes Division staffed by a small number of specially trained officers whose function is to supervise prosecutions of exceptional sensitivity or difficulty. I would accept that this change in prosecution practice has gone one step further towards meeting the challenge of arbitrariness. Furthermore, as Ms Dinah Rose QC for the Director said, in addition to the Code Ms Purdy now has the guidance that can be obtained from the Director’s decision in the case of Daniel James. She submitted that sufficient guidance was now available as to how in practice decisions were likely to be taken in cases of that kind. It was undesirable for the Director to go any further in setting out his policy. Very serious ethical issues were involved, especially as there were many examples of people who were severely disabled leading full and fulfilling lives. A finding that the Code did not provide sufficient guidance would have serious implications as this could inhibit the width of the Director’s discretion.

53.  But it seems to me that, for anyone seeking to identify the factors that are likely to be taken into account in the case of a person with a severe and incurable disability who is likely to need assistance in travelling to a country where assisted suicide is lawful, these developments fall short of what is needed to satisfy the Convention tests of accessibility and foreseeability. The Director’s own analysis shows that, in a highly unusual and extremely sensitive case of this kind, the Code offers almost no guidance at all. The question whether a prosecution is in the public interest can only be answered by bringing into account factors that are not mentioned there. Furthermore, the further factors that were taken into account in the case of Daniel James were designed to fit the facts of that case. There could be others just as unsuitable for prosecution where, for example, it could be said that those who offered assistance stood to gain an advantage, financial or otherwise, by the death. An assistant who was not a relative or a family friend might have to be paid, for example, and a relative might derive some benefit under the deceased’s will or on intestacy. The issue whether the acts of assistance were undertaken for an improper motive will, of course, be highly relevant. But the mere fact that some benefit might accrue is unlikely, on its own, to be significant.

Conclusion

54.  The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind.

55.  The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

56.  I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act.

BARONESS HALE OF RICHMOND

My Lords,

57.  As I begin to write this opinion, the House of Lords in its legislative capacity has just been debating an amendment to the Coroners and Justice Bill which might have made it unnecessary for the House in its judicial capacity to decide this case. Lord Falconer’s amendment was designed to take one type of assistance out of the scope of the offence of assisting or encouraging suicide. This was “enabling or assisting [another adult] to travel to a country or territory in which assisted dying is lawful” but only if two conditions were satisfied. Two doctors would have to certify that the person to be helped was terminally ill and that she had the capacity to make the required declaration. She would have to make a written declaration, independently witnessed, that she knew the contents of the medical certificates and had decided to travel to a country where assisted dying was lawful for the purpose of obtaining that assistance.

58.  After three hours of anxious, thoughtful and well-informed debate the House rejected the amendment by 194 votes to 141. In his closing speech, Lord Falconer commented that “Although huge passions were expressed during the debate, I never detected at any stage that anybody in the Committee wanted to prosecute the well intentioned person who went with their loved one to help them in their assisted dying” (Hansard (HL), vol 712, col 633). Many who opposed the amendment were concerned that, as Baroness O'Neill of Bengarve put it, “we have to take account not merely of compassionate assistance but of interested assistance and it is extraordinarily difficult to imagine any drafting that would do that” (col 609). Another former Lord Chancellor, Lord Mackay of Clashfern, explained that “The main reason why I feel that this amendment is not justified is that the present law, with and on the assumption that what is involved is a criminal offence, permits the circumstances to be looked at by the criminal prosecuting authority. . . . The fact that they felt that there was no obligation to raise a prosecution [in recent cases] showed that the circumstances in their view made that a proper decision” (cols 599 - 600).

59.  Thus there would appear to be a general feeling that, while there are cases in which a prosecution would not be appropriate, it is necessary to retain the offence, with its current wide ambit, in order to cater for the cases in which prosecution would be appropriate. But a major objective of the criminal law is to warn people that if they behave in a way which it prohibits they are liable to prosecution and punishment. People need and are entitled to be warned in advance so that, if they are of a law-abiding persuasion, they can behave accordingly. Hence the problem faced by Ms Purdy, her husband and other people who feel as she does:

“I want to avoid the situation where I am too unwell to terminate my life. I want to retain as much autonomy as possible. I want to make a choice about when the quality of my life is no longer adequate and to die a dignified death. The decision is of my own making. Nobody has suggested this to me or pressured me to reach this view. It is a decision that I have come to of my own free will.”

60.  In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court of Human Rights considered that “the notion of personal autonomy is an important principle underlying the interpretation” of the right to respect for private and family life, home and correspondence, guaranteed by article 8 of the Convention (para 61). It went on to point out that “the ability to conduct one’s life in a manner of one’s own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned” (para 62). The fact that death was not usually the intended consequence of such activities could not be decisive. Imposing medical treatment without consent would “interfere with a person’s physical integrity in a manner capable of engaging the rights protected under article 8(1)” (para 63). Domestic law recognised that a person may exercise a choice to die by refusing consent to life-prolonging treatment. Mrs Pretty also wished to exercise a choice to end her life. “As stated by Lord Hope, 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” (para 64, referring to R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, para 100).

61.  After this reasoning, it is scarcely surprising that the Court took the view, most clearly articulated in relation to the claim that the law discriminated against people who were too disabled to take their own lives, that Mrs Pretty’s rights under article 8 were engaged (para 87); and that it was not prepared to exclude that the law, which prevented her from exercising her choice to avoid an undignified and distressing end to her life, constituted an interference with her right to respect for her private life (para 67); and therefore went on to consider whether such interference could be justified under article 8(2) (paras 68 to 78).

62.  In those circumstances, and despite the skilful and obviously sincerely believed argument to the contrary on behalf of the intervener, the Director was in my view correct to concede that the right to respect for private life was engaged and that the potential for interference had to be justified under article 8(2). In Pretty v United Kingdom, it was common ground that the restriction on assisted suicide was “in accordance with the law” and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others. The only issue was whether it was “necessary in a democratic society” (para 69). The applicant argued that it was disproportionate to impose a “blanket ban” which applied both to those who did and to those who did not need the protection of the law. In view of the seriousness of the harm involved and the clear risks of abuse, the Court did not consider that the blanket nature of the ban was disproportionate (para 76).

63.  However, the Court went on to take account of the flexibility in the law produced both by the requirement that the DPP consent to any prosecution and by the wide range of permissible sentences. Thus,

“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” (para 76).

Both sides have understandably gained comfort from that passage. For the DPP, it justifies a blanket ban coupled with flexible enforcement. For Ms Purdy, it contemplates that there will be individual cases in which the deterrent effect of a prosecution would be a disproportionate interference with the autonomy of the person who wishes to end her life. Moreover, in an argument which was not raised in Pretty, if the justification for a blanket ban depends upon the flexibility of its operation, it cannot be “in accordance with the law” unless there is greater clarity about the factors which the DPP and his subordinates will take into account in making their decisions.

64.  My Lords, I accept that argument on Ms Purdy’s behalf. Ms Dinah Rose QC, on behalf of the DPP, made a valiant attempt to suggest that all the factors which the DPP was likely to take into account in these cases could be gleaned from the current Code for Crown Prosecutors. But the way in which the DPP had to explain his decision in the case of Daniel James (Decision on Prosecution - The Death by Suicide of Daniel James, 9 December 2008) shows that some of the listed factors have to be turned on their head and other unlisted factors introduced in order to cater for these difficult decisions. Furthermore, as it seems to me, the object of the exercise should be to focus, not upon a generalised concept of “the public interest", but upon the features which will distinguish those cases in which deterrence will be disproportionate from those cases in which it will not. The exercise will be important, not only in guiding the small number of Crown Prosecutors who decide the small number of cases which are actually referred to them by the police, but also in guiding the police and thus the general public about the factors to be taken into account in deciding whether a prosecution will or will not be in the public interest.

65.  I do not underestimate the difficulty of the task. Clearly, the prime object must be to protect people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others. These were the pressures about which the Members of this House were most concerned. But at the same time, the object must be to protect the right to exercise a genuinely autonomous choice. The factors which tell for and against such a genuine exercise of autonomy free from pressure will be the most important.

66.  But I have also been concerned about whether account should be taken of the reasons why a person might wish to die. Take the example of Lord Falconer’s amendment, which would have restricted the right to exercise choice to those who were terminally ill. If we are serious about protecting autonomy we have to accept that autonomous individuals have different views about what makes their lives worth living. There are many, many people who can live with terminal illness; there are many, many people who can live with a permanent disability at least as grave as that which afflicted Daniel James; but those same people might find it impossible to live with the loss of a much-loved partner or child, or with permanent disgrace, or even with financial ruin. Yet in attitudinal surveys the British public have consistently supported assisted dying for people with a painful or unbearable incurable disease from which they will die, if they request it, while rejecting it for people with other reasons for wanting to die (National Centre for Social Research, British Social Attitudes, The 23rd Report, 2007, chapter 2).

67.  Here we are, of course, concerned about people who are unable or unwilling to end their own lives without assistance. The need for more precise guidelines governing the prosecution of those who may help them stems from the right to respect for their private lives protected by article 8. So I come back to what the European Court said about that right in Pretty, in the well-known passage 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 the 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.”

68.  It is not for society to tell people what to value about their own lives. But it may be justifiable for society to insist that we value their lives even if they do not. In considering the factors for and against prosecution in the Daniel James case, the DPP did not focus upon the reasons why Daniel wished to die. Rather, he focussed upon the fact that he was “a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment", who had tried to commit suicide before, and whose parents had tried relentlessly to persuade him not to do so; also, far from gaining any advantage from his death, it had caused his parents profound distress. These are obviously among the most important factors, although no doubt there are many more. But among them, I would hope that some attention would be paid to the reasons why the person (whose Convention rights are engaged) wished to be helped to end his or her life. The House, when debating Lord Falconer’s amendment, was clearly concerned that some of the people who had made use of the services of Dignitas in Switzerland were not suffering from terminal or seriously debilitating diseases. If it is the Convention which is leading us to ask the Director for greater clarity, a relevant question must be in what circumstances the law is justified in interfering with a genuinely autonomous choice.

69.  For all those reasons, in addition to those given by your Lordships, I too would allow this appeal and make the order proposed by my noble and learned friend, Lord Hope of Craighead. However, I do not think it necessary to decide whether section 2(1) of the 1961 Act covers acts here which aid and abet a suicide which is to be assisted in another jurisdiction where such acts are lawful. The question has not yet been decided here and the risk that it might be decided adversely to Ms Purdy and her husband is sufficient to raise the main issue which is before us now.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

70.  There are not many crimes of which it can be said that their discouragement by the State may violate the fundamental human rights of others. Yet undoubtedly that is true in certain circumstances of the conduct criminalised by section 2(1) of the Suicide Act 1961:

“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 fourteen years.”

71.  Take the facts of Pretty v United Kingdom (2002) 35 EHRR 1, mirrored in several respects by the facts of the present case and, indeed, those of many other cases. Mrs Pretty was suffering from a deteriorating degenerative disease which would cause her ever-increasing physical and mental suffering. There would come a point at which she wished to mitigate that suffering by choosing to end her life with the assistance of her husband. As the ECtHR observed at paragraph 67 of its judgment, Mrs Pretty “is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life". Read as a whole and fairly understood, the Court’s judgment makes it quite plain that the bar on assisted suicide under section 2(1) had to be regarded as interfering with Mrs Pretty’s right under article 8 of ECHR to respect for her private life. More particularly it interfered with her personal autonomy and right to self-determination.

72.  Of course, as the Court also made plain, such interference may well be justifiable under the terms of article 8(2). But whether this is so or not depends upon whether it is “in accordance with the law", has a legitimate article 8(2) aim and is “necessary in a democratic society” to achieve that aim (necessity in this context implying not least proportionality). No argument was advanced by Mrs Pretty that the interference was not “in accordance with the law"; this is important since it is this argument which is the central plank of Ms Purdy’s case before your Lordships. Nor did Mrs Pretty dispute—any more than Ms Purdy now seeks to dispute—that a restriction on assisted suicide pursues the legitimate aim of safeguarding life and thereby protecting the rights of others. Rather, Mrs Pretty’s arguments “focused on the proportionality of the interference” and “attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection” (para 72 of the Court’s judgment).

 
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