#1738 - R(purdy) V Dpp - Medical Law

R(Purdy) v DPP [2009] UKHL 45

House of Lords

Held Lord Hope

• On one view the law, as it stands, could not be clearer. It is an offence to assist someone to travel to Switzerland or anywhere else where assisted suicide is lawful. Anyone who does that is liable to be prosecuted.

  • He is in the same position as anyone else who offends against section 2(1) of the 1961 Act. As with any other crime, the test that will be applied is that which the Crown Prosecution Service code lays down.

    • He may be prosecuted if there is enough evidence to sustain a prosecution and it is in the public interest that this step should be taken.

    • But the practice that will be followed in cases where compassionate assistance of the kind that Ms Purdy seeks from her husband is far less certain

• Art 8(1) is engaged as per the ECTHR, 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

• But is it justified?

  • The Convention principle of legality requires the court to address itself to three distinct questions.

    • The first is whether there is a legal basis in domestic law for the restriction.

    • The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.

    • The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism that it is being applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate

  • The word “law” in this context is to be understood in its substantive sense, not its formal one

    • This means that it goes beyond statute and includes both enactments of lower rank than statutes and unwritten law. Furthermore, it implies qualitative requirements, including those of accessibility and foreseeability.

      • Accessibility means that an individual must know from the wording of the relevant provision and of it what acts and omissions will make him criminally liable

      • The requirement of foreseeability will be satisfied where the person concerned is able to foresee the consequences which a given action may entail.

        • A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary

• Consistency of practice is especially important here.

  • The issue is without doubt both sensitive and controversial

    • Crown prosecutors to whom the decision-taking function is delegated need to be given the clearest possible instructions as to the factors which they must have regard to when they are performing it.

    • The police, who exercise an important discretion as to whether or not to bring a case to the attention of the Crown prosecutors, need guidance also if they are to avoid the criticism that their decision-taking is arbitrary

  • But 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,

    • the code is not sufficient 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

• 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

  • 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 who wishes to go to Switzerland.

    • 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.

Baroness Hale

• 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.

• The ECtHR in Pretty held that

  • It was not arbitrary for a state to underline importance of the right to...