| CRIME — Aiding and abetting — Suicide — Degeneratively ill claimant anticipating need of husband’s help in committing suicide — Whether Director of Public Prosecutions unlawfully failing to provide guidance on likelihood of prosecution — Suicide Act 1961, s 2(1) — Human Rights Act 1998, Sch 1, Pt 1, art 8
R (Purdy) v Director of Public Prosecutions [2008] EWHC 2565; [2008] WLR (D) 337
QBD: Scott Baker LJ and Aikens J : 29 October 2008
The Director of Public Prosecutions did not act unlawfully in failing to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted under s 2(1) of the Suicide Act 1961 for assisting another person to commit suicide.
The Divisional Court of the Queen’s Bench Division so held when dismissing an application by Debby Purdy for judicial review by way of a declaration that her rights under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been infringed by the failure of the Director of Public Prosecutions to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted for assisting another person to commit suicide.
SCOTT BAKER LJ, giving the judgment of the court, said that while suicide was not a crime, it was under s 2(1) of the Suicide Act 1961 a crime to aid, abet, counsel or procure the suicide of another. The claimant suffered from multiple sclerosis and there would come a time when her continuing existence would be so unbearable that she would wish to end her own life, probably by “assisted suicide” in a country which had appropriate facilities. It was anticipated that her husband’s help would be necessary, and he would consequently be at risk of prosecution. The claim was that art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms necessitated the publication of guidance. The first issue was whether the words “right for respect for his private and family life” (art 8(1)) were engaged in the circumstances. In the similar case, R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, the House of Lords had concluded that Ms Pretty’s rights under art 8 had not been engaged at all. The European Court of Human Rights had, even if in elliptical terms, subsequently taken a very different and wider view of the ambit of art 8, but it was settled that the Divisional Court should follow the House of Lords rather than the European Court (Kay v Lambeth Borough Council [2006] 2 AC 465), and, while that did not apply in exceptional circumstances, the present case was not exceptional. The view taken in Pretty’s case had not been departed from in subsequent cases. It followed that art 8(1) had not been engaged in the present case. In any event, any interference with the exercise of the claimant’s right under art 8(1) was “in accordance with the law” within art 8(2). The Director’s “Guidelines for Crown Prosecutors” and relevant common law remedies satisfied the required Convention standards of clarity and foreseeability. There were special reasons for the promulgation of specific codes of practice relating to certain crimes, and a code in relation to s 2(1) of the 1961 Act would be in danger of infringing the rule that no executive authority can give undertakings in advance of the event.
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