Purdy, R (on the application of) v Director of Public Prosecutions & Ors [2009] EWCA Civ 92

“3. By 2001, I was permanently using a wheelchair and finding everyday tasks like showering or cooking more difficult, and often impossible, without help. 4. More recently in 2006 my arms became weaker and self-propelling my wheelchair became more difficult. Brushing my teeth was becoming impossible. I bought an electric toothbrush, but even that is difficult. I take painkillers everyday and that manages the pain in my swollen feet. I find it difficult to hold my body still and flop around. I have regular physiotherapy to try and use the right muscles and reduce painful spasms. I experience dry mouth from time to time. I experience choking fits. I am beginning to lose the ability to do many things for myself. 5. Throughout 2007 my condition has deteriorated further. For example I cannot cut things up. I drop things a lot. I am more prone to choking fits when I drink. I now need to use an electric wheelchair ...”

“7. My wish is to be able to ask for and receive assistance to end my life, should living it become unbearable for me. I wish to be able to make the decision to end my life while I am physically able to do so. I consider that this will probably mean either traveling to Zurich, Switzerland to avail myself of the services of Dignitas (as I do not wish to mess up any attempts, thereby making matters worse for myself), or to go to Belgium and avail myself of the Belgian Act on Euthanasia of 28th May 2002 as Belgium is relatively easy for me to travel to. 8. My husband has said he would assist me and if necessary face a prison sentence, but I am not prepared to put him in this position for a number of reasons. I love him and do not want him to risk ending up in prison … I also do not want him to suffer more than necessary. 9. 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. This decision is of my own making. Nobody has suggested this to me or pressured me to reach this view. It is a decision I have come to of my own free will.”

“It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.”

“5.7 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 outweighed those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution. … 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. The following lists of some common public interest factors, both for and against prosecution, are not exhaustive. The factors that apply will depend on the facts in each case. Some common public interest factors in favour of prosecution 5.9 The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if: aa conviction is likely to result in a significant sentence; b a conviction is likely to result in a confiscation or any other order; c a weapon was used or violence was threatened during the commission of the offence; d the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse); ethe defendant was in a position of authority or trust; fthe evidence shows that the defendant was a ringleader or an organiser of the offence; 8 gthere is evidence that the offence was premeditated; hthere is evidence that the offence was carried out by a group; ithe victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance; j the offence was committed in the presence of, or in close proximity to, a child; kthe 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; lthere 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 that the offence is likely to be continued or repeated, for example, by a history of recurring conduct; p the offence, although not serious in itself, is widespread in the area where it was committed; or qa prosecution would have a significant positive impact on maintaining community confidence. Some common public interest factors against prosecution 5.10 A prosecution is less likely to be needed if: a the court is likely to impose a nominal penalty; b the defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order, … c the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence); d the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement; e there has been a long delay between the offence taking place and the date of the trial, unless: • the offence is serious; • the delay has been caused in part by the defendant; • the offence has only recently come to light; or 0 • the complexity of the offence has meant that there has been a long investigation; 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; 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 real possibility that it may be repeated. … h the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution or diversion solely because they pay compensation); or i details may be made public that could harm sources of information, international relations or national security.”

“35. I remind myself that the factors identified in the Code in favour or against a prosecution are not exhaustive of the public interest factors that may be relevant in any given case. It is also important to keep in mind that Parliament has chosen to retain section 2(1) Suicide Act 1961 and a decision not to prosecute should not be taken merely because there are powerful mitigating circumstances. However, I consider that a factor that is otherwise relevant does not cease to be relevant merely because it overlaps with, or might be relevant to, mitigation. I have therefore focused intensely on the particular facts of his case. a. An offence under section 2(1) Suicide Act 1961 is serious. That points in favour of a prosecution. b. Neither Mark and Julie James nor the family friend influenced Daniel James to commit suicide. On the contrary, his parents tried relentlessly to persuade him not to commit suicide. Daniel was a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment. There is clear evidence that he had attempted to commit suicide on three occasions and that he would have made further attempts if and whenever an opportunity to do so arose. On the facts of this case, these are factors against prosecution. c. Although the evidential test under the Code is met, a wide range of conduct of varying degrees of culpability is caught by section 2(1) Suicide Act 1961 and, although not truly minor acts, on the facts of this case the conduct of Mark James, Julie James and the family friend was more remote than the acts under consideration in Wallis and Hough and towards the less culpable end of the spectrum. That is a factor against prosecution. d. Neither Daniel's parents nor the family friend stood to gain any advantage, financial or otherwise, by his death. On the contrary, for his parents, Daniel's suicide has caused them profound distress. That is a factor against prosecution. 36. Taking those factors into account and bearing in mind the observation of Lord Lane CJ in [and he here quotes the passage cited earlier in this judgment from Hough] … I have decided that the factors against prosecution clearly outweigh those in favour. In the circumstances I have concluded that a prosecution is not needed in the public interest.”

“Right to respect for private and family life (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.”

“[39] … On the face of it there is some doubt whether the court definitively concluded that art 8(1) was engaged or whether the court decided to proceed on the assumption that it was, but determined the case by its conclusion that there was compliance with art 8(2).”

“[46] … the somewhat elliptical wording of the European Court at para 67 of Pretty leaves us in considerable doubt about the extent to which the Court might have disagreed with the House of Lords about the ambit of the rights created by Article 8(1)”

“13. The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life. … While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts [of] aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act.”

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body …”

“[23] … Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v The Netherlands 8 EHRR 235. But article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives and there is nothing to suggest that the Article has reference to the choice to live no longer.”

“[61] … Counsel submitted that this 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 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.”

“[100] … 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.”

“ … 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.”

“[29] … It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.”

“[62] … It is a sufficient answer [to the submission that the scope of section 2(1) was disproportionate to its aim] that there is a broad class of persons presently protected by section 2 who are vulnerable. It was therefore well within the range of discretion of Parliament to strike the balance between the interests of the community and the rights of individuals in the way reflected in section 2(1).”

“[102] … I would hold that the Director's refusal to give the undertaking was not disproportionate to the object of section 2(1), which is to avoid abuse and to protect the weak and the vulnerable.”

“1. The applicant 58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. … 2. The Government 1. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based.”

“61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. 62. The Government has argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe 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. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, 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 meaning of Article 8(1) and requiring justification in terms of the second paragraph. [The footnote cites the example of a refusal of medical treatment.] 63. While it might be pointed out that death was not the intended consequence of the applicant’s conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8(1) of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life. [The footnote here refers to Lord Goff’s speech in Airedale NHS Trust v Bland [1993] A.C. 789, 864: “First it is established that that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must respect his wishes, even though they do not consider it to be in his best interests to do so …to this extent, the principle of the sanctity of human life must yield to the principle of self-determination.”]. 64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. 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. 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. 66. In Rodriguez v. the Attorney General of Canada, which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case from receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body. 67. 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.”

“74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in the Rodriguez case, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. … It is vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. … 76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. 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. … 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. … 78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention.”

“87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged. It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide. … 89. … there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable. Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse.”

“64. Where the Court of Appeal considers that an earlier decision of this House, which would otherwise be binding on it, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then (absent wholly exceptional circumstances) the court should faithfully follow the decision of the House, and leave it to your Lordships to decide whether to modify or reverse its earlier decision. To hold otherwise would be to go against what Lord Bingham decided. As a matter of principle, it should be for this House, not for the Court of Appeal, to determine whether one of its earlier decisions has been overtaken by a decision of the ECtHR. … As to what would constitute exceptional circumstances, I cannot do better than to refer back to the exceptional features which Lord Bingham identified as justifying the Court of Appeal’s approach in East Berkshire [2004] QB 558: see Kay [2006] 2 AC 465, para 45.”

“9. … It is plain that “private life” is a broad term, and the court has wisely eschewed any attempt to define it comprehensively. … In Pretty v United Kingdom (2002) 35 EHRR 1, 35-36, para 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that: “Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.”

“132. … The essence of the Convention, as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom (2002) 35 EHRR 1, 37, para 65.”

“11. The HR claimants helpfully presented their article 8 case under four headings. The first was “private life and autonomy". The authorities principally relied on were Pretty … From the court’s judgment in Pretty the claimants drew recognition (para 61) 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. … 15. Despite the careful argument of Mr Gordon QC for the HR claimants, I am not persuaded that their claims can be brought within the scope of article 8 under any of the four heads relied on: (1) Fox-hunting is a very public activity, carried out in daylight with considerable colour and noise, often attracting the attention of on-lookers attracted by the spectacle. No analogy can be drawn with the very personal and private concerns at issue in … Pretty.”

“54. I agree that the claims of the HR claimants cannot be brought within the scope of article 8 of the Convention. We are not concerned in this case with personal autonomy in the sense referred to in Pretty v United Kingdom (2002) 35 EHRR 1, paras 61 and 66. This case is not about the choices that a person makes about his or her own body or physical identity.”

“94. In Pretty v United Kingdom (2002) 35 EHRR 1, 35, para 61, the European Court pointed out that “private life” in article 8(1) is “a broad term". The Court also said that the notion of “personal autonomy” is an important principle underlying the interpretation of the various guarantees, including the right to “personal development", in that aspect of article 8(1).”

“… that article 8(1) protects those features of a person’s life which are integral to his identity.”

“139. … for my part [I] would hope to see the jurisprudence governing the scope of article 8 further developed by the Strasbourg Court. Why should it not encompass a broad philosophy of live and let live (or, in Mrs Pretty’s case, let die: Pretty …)? 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 court 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. … 141. Naturally I have considered whether this House ought itself properly to construe and apply article 8(1) sufficiently widely to encompass at least some 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 of appreciation, 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 a comparable margin exists for considering 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.”

“No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”

“When the Act is considered … it gives a clear indication that the circumstances in which the offence is committed may be such that the public interest does not require the imposition of any penal sanction. This, in my judgment, is the logical conclusion to be drawn from the “consent” provision.”

“(a) secure consistency of practice in bringing prosecutions, e.g., where it is not possible to define the offence very precisely so that the law goes wider than the mischief aimed at or is open to a variety of interpretations; (b) to prevent abuse or the bringing of the law into disrepute, e.g., with the kind of offence which might otherwise result in vexatious private prosecution …; (c) to enable account to be taken of mitigating factors, which may vary so widely from case to case that they are not susceptible to statutory definition; (d) to provide some central control over the use of criminal law when it has to intrude into areas which are particularly sensitive or controversial …”

“… those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, while certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

“…whether or not the Director has the power to make such a statement he has no duty to do so ...”

“disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant’s husband … the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.”