West Law Report

Ban on assisted suicide no breach of right to privacy

Posted in Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 17, 2008
Ban on assisted suicide no breach of right to privacy

Queen’s Bench Divisional Court
Published November 17, 2008
Regina (Purdy) v Director of Public Prosecutions
Before Lord Justice Scott Baker and Mr Justice Aikens
Judgment October 29, 2008

The statutory prohibition on assisted suicide did not engage the right to private life protected under article 8.1 of the European Convention on Human Rights.

The Queen’s Bench Divisional Court so held when dismissing claims by way of judicial review and under section 7 of the Human Rights Act 1998 by the claimant, Ms Debbie Purdy, for a declaration that the defendant, the Director of Public Prosecutions, had acted contrary to section 6(1) of the 1998 Act in that it was incompatible with her right to private life under article 8.1 for the defendant to refuse to promulgate a policy as to the circumstances in which a prosecution would be brought for aiding and abetting a suicide contrary to section 2(1) of the Suicide Act 1961, in particular where the assisted suicide took place in a country where the practice was lawful. Lord Pannick, QC and Mr Paul Bowen for Ms Purdy; Ms Dinah Rose, QC and Mr Jeremy Johnson for the DPP; Mr Charles Foster for the Society for the Protection of Unborn Children, intervening.

LORD JUSTICE SCOTT BAKER, giving the judgment of the court, said that the claimant, who was 45, suffered from primary progressive multiple sclerosis.

She had accepted that there would come a time when her continuing existence would become increasingly unbearable and at that point she would wish to end her own life, probably by traveling to Switzerland where she would be able to use the services of Dignitas, an organisation which assisted those with medically diagnosed hopeless or incurable illness, to end their life with dignity.

The claimant and her husband were aware that if he were to assist her to travel abroad for that purpose, he would be at risk of prosecution and conviction under section 2(1) of the 1961 Act. They were also aware that the DPP could not give her husband immunity from prosecution under section 2(1) prior to the possible commission of any offence by him: see R (Pretty) v DPP ( The Times December 5, 2001; [2002] 1 AC 800).

The claimant, however, claimed that the prohibition on assisted suicide in section 2(1) engaged her right under article 8.1 since her right to private life encompassed the right to determine how she might die, and that any interference with that right had, according to article 8.2, to be in accordance with the law; and that in order for the prohibition in section 2(1) to be in accordance with the law the DPP had a duty to publish a specific policy outlining the circumstances in which a prosecution under section 2(1) would take place.

The first question was whether the prohibition in section 2(1) engaged article 8.1. The House of Lords held in Pretty that it did not on the ground that article 8.1 related to the manner in which a person conducted her life, not the manner in which she departed from it.

The European Court of Human Rights, however, tentatively held in Pretty v United Kingdom(Application No 2346/02) ((2002) 35 EHRR 1) that article 8.1 was engaged by the prohibition in section 2(1). It held that where an applicant was prevented by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life, the Court was not prepared to exclude that that constituted an interference with her right to respect for private life as guaranteed under article 8.1.

The Divisional Court was, however, bound by the rules of precedent to follow the decision of the House in Pretty: see Kay v Lambeth London Borough Council (The Times March 10, 2006; [2006] 2 AC 465).

Since the House had not yet departed from its decision in Pretty to follow the developing jurisprudence in Strasbourg on personal autonomy, it was still the case that an individual’s rights under article 8.1 were not engaged by section 2(1) of the 1961 Act.

The claimant’s only means of pursuing her claim had been to establish an infringement of her right to private life. Since the court had found that her rights under article 8.1 had not been engaged her claim was dismissed.

Had the claimant established that her rights under article 8.1 were engaged, the present Code for Crown Prosecutors promulgated under section 10 of the Prosecution of Offences Act 1985, together with the general safeguards of the administrative law, were sufficient to satisfy the requirement that the interference was in accordance with the law under article 8.2.

Solicitors: Bindmans; Treasury Solicitor; Penningtons, Basingstoke.

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