“(1) A person (“D”) commits an offence if— (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. … (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years. …. (4) [N]o proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
“[T]the doctor's conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place.”
“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 … . It does not appear 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.”
“43. A prosecution is more likely to be required if: 1. The victim was under 18 years of age; 2. The victim did not have the capacity (as defined by theMental Capacity Act 2005 ) to reach an informed decision to commit suicide; 3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide; 4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect; 5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative; 6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. The suspect pressured the victim to commit suicide; 8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. The suspect had a history of violence or abuse against the victim; 10. The victim was physically able to undertake the act that constituted the assistance him or herself; 11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. The suspect gave encouragement or assistance to more than one victim who were not known to each other; 13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance; 14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; 15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. 44. On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect’s act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.”
“45. A prosecution is less likely to be required if: 1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. The suspect was wholly motivated by compassion; 3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.”
“The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast …. It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do.”
“(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?”
“I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships’ House would never have been decided the way they were.”
“There are of course many … who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after an intense debate a majority of the country’s democratically elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue. … Here we are dealing with a law which is very recent and must … be taken to reflect the conscience of a majority of the nation. The degree Page 32 of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.”
“It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported)16 March 2000 is an example of this pragmatic approach to the practicalities of government.”
“How does [the 2010 Policy] apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. … In short, we accept the submission … that the Policy does not provide medical doctors and other professionals with the kind of steer … that it provides to relatives and close friends acting out of compassion ….”
“185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. 186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy … deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution.”
“If in practice the ban were to operate on a blanket basis, the only relaxation in its impact being by way of merciful sentences on some occasions when it is disobeyed, that would hardly give sufficient weight to the article 8 rights with which the ban, if obeyed, is acknowledged to interfere.”
“an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning ofarticle 8 of the Convention .”
“She contends that the section is discriminatory because it prevents the disabled, but not the able bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide.”
“87. For the purposes of article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). 88. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, 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. Underarticle 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 (see paragraph 74 above). 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.”
“71. An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision-maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court. …. 74. The judgment of Dickson CJ in Oakes (R v Oakes[1986] 1 SCR 103 ) provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in de Freitas (de Freitas v Permanent Secretary if Ministry of Agriculture, Fisheries, Lands and Housing[1999] 1 AC 69 ), and the fourth reflects the additional observation made in Huang (Huang v Secretary of State for the Home Department[2007] 2 AC 167 ). I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact Page 55 of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd[1986] 2 SCR 713 , 781-782 that the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173, 188–189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a ‘least restrictive means’ test would allow only one legislative response to an objective that involved limiting a protected right. 76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony[2009] 2 SCR 567 , para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four).”
“69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the EU Treaty. The test is expressed in more compressed and general terms than in German or Canadian law, and the relevant jurisprudence is not always clear, at least to a reader from a common law tradition. In R v Ministry of Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88 ) [1990] ECR I4023, the European Court of Justice stated, at para 13): “The court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.”
“Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the 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. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.”
“We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi-official status”
“[129] I have now reviewed the RSC Report and have concluded that it will be admitted in evidence, in the main for the fact that the expert panel made the recommendations that it did. I have not relied upon it as evidence on any contentious matters such as the efficacy of safeguards in jurisdictions that permit physician-assisted dying. Its review of the legal landscape regarding end-of-life care in Canada is not evidence, but the equivalent of a law review article or a legal text.”
“1267. With respect to the absolute prohibition’s alleged salutary effects in preventing wrongful deaths, or in preventing abuse of vulnerable people, my review of the evidence from Canada and elsewhere leaves me unconvinced that an absolute prohibition has that effect in comparison with a prohibition combined with stringently limited exceptions.”
“I think that there are genuine dangers in extending the scope of assisted dying to people who are not terminally ill, who are disabled. All those things that disability groups fear, I think that it would certainly play into those appropriate fears”
“The Commission was unable to reach a consensus on the issue of whether a person who has had a catastrophically life-changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, and we consider that this lack of consensus reflects the mixed views of society on this issue. Bearing in mind the considerable concerns of many disabled people about such a provision, we have recommended that it would not be appropriate for such a provision to be included in future legislation.”
“we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable.”
“[T]he Court finds... 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. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the 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. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.”
“The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate.”
“Even if the principle derived from the Thlimmenos case is applied to the applicant’s situation, however, 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. Underarticle 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.”
“Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society. I am thus unable to find that any principle of fundamental justice is violated by s. 241(b). (p 608) As I have sought to demonstrate in my discussion of s.7, this protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the ‘slippery slope’. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuses of the exception.”
“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. 77 Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant’s husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, 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. 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 ofarticle 8 of the Convention .”
“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 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.”
“It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.”
“39 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the victim was not ‘under 18 years of age’ does not transform the ‘factor tending in favour of prosecution’ into a ‘factor tending against prosecution’.”
“141. First, it would go beyond the Convention jurisprudence about the meaning of ‘law’ in the context of the rule of law. Even when considering the meaning of ‘law’ in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to ‘law’ in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action. 142. Secondly, it would be impractical, if not impossible, for the DPP to lay down Guidelines which could satisfactorily embrace every person in Mr Havers’ class 2, so as to enable that person to be able to tell as a matter of probability whether he or she would be prosecuted in a particular case. As Mr Havers rightly observed, the factors for and against prosecution may point in opposite directions. I do not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor or a combination of factors on the other side. The DPP is not like an examiner, giving or subtracting marks in order to decide whether a candidate has achieved a pass mark. The DPP has expressed his opposition to any such schematic approach for the good reason that each case ultimately involves a personal judgment. 143. Thirdly, it would require the DPP to cross a constitutional boundary which he should not cross. For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.”
“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.”
"In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney General, Sir Hartley Shawcross, said: 'It has never been the rule of this country - I hope it never will be - that criminal offences must automatically be the subject of prosecution.' He pointed out that the Attorney General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said: ' . . there is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney General supposes it is.’ Sir Hartley Shawcross's statement was indorsed, I think, by more than one of his successors."
"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."
“The discretion conferred on the Director of Public Prosecutions by section 2(4) is integral to the application of the criminal offence created by section 2(1). … the flexibility introduced by the consent provisions of section 2(4) was recognised by the European Court of Human Rights in Pretty v United Kingdom(2002) 35 EHRR 1 as an important factor relevant to establishing that the prohibition in section 2(1) was not a disproportionate interference with article 8: see at para 76. Section 2(4), therefore, constitutes parliamentary acknowledgment that there is a category of individuals who, notwithstanding they may have committed the offence under section 2(1), should nevertheless suffer no criminal penalty as a result and whom it is not in the public interest to prosecute.”
“…to promulgate policy identifying facts and circumstances which he will take into account in deciding whether to consent to prosecution undersection 2(1) of the Suicide Act 1961 ”
"that the…Director of Public Prosecutions (DPP) is in breach ofsection 6(1) of the Human Rights Act 1998 , read with article 8.2 of the European Convention on Human Rights, in that he has made insufficiently foreseeable the consequences, in terms of the exercise of his prosecutorial discretion undersection 2(4) of the Suicide Act 1961 , of the encouragement or assistance of a suicide or attempted suicide."
“Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilson’s list of factors in para 205 [above], while of real interest, might fairly be said to be somewhat premature.”
“. . . . an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning ofarticle 8 of the Convention .”
“… the Court considers that an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning ofarticle 8 of the Convention .”
“It must be remembered that the Strasbourg court is an international court, deciding whether a member state, as a state, has complied with its duty in international law to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the member state. When it says that a question is within the margin of appreciation of a member state, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the member state.”
‘It is for Parliament, not the executive, to repeal legislation.’