R (on the application of Purdy) v the Director of Public Prosecutions  UKHL 44.
There are several remarkable features about the case of Debbie Purdy. For one, the case started with judicial review proceedings in April 2008, concluding with the House of Lords judgment on 30 July 2009 – less than 15 months later
Second, this was the very last judgment of the House of Lords before the Lords rose to re-emerge as the Supreme Court in October. Third, the Lords made new law by overturning the decision in the Pretty case, deciding that article 8 was engaged.
And of course the case has turned public opinion, sparking a fresh debate about assisted suicide.
Ms Purdy suffers from primary progressive multiple sclerosis, for which there is no known cure. It was diagnosed in 1995 and is progressing. She now needs an electric wheelchair and has lost the ability to carry out many basic tasks. She has problems with swallowing and has choking fits when she drinks. Further deterioration in her condition is inevitable. There will come a time when her continuing existence will no longer be of an acceptable quality. When that happens she will wish to end her life by having an assisted suicide in Switzerland. By that stage she will be unable to do so without assistance from her husband Omar Puente. Omar is willing to help her to make this journey. Debbie, however, does not want to take the risk that Omar will be prosecuted for helping her.
The claim issued in April 2008 sought judicial review of the refusal of the DPP to publish details of his prosecution policy in relation to offences committed under Section 2(1) of the Suicide Act 1961.
The law as it standsIt is not unlawful for a person to commit suicide in this country, so the primary offence is not illegal. However, it is unlawful to assist a person to commit suicide by aiding, abetting, counselling or procuring the suicide of another. The penalty if convicted is imprisonment for a term of up to 14 years.
Section 2(4) of the act provides that proceedings can only be brought with the consent of the DPP.
It was argued that the DPP had acted unlawfully either by failing to promulgate a policy or by failing to disclose the criteria which he applies in cases of this kind, whether he calls it a policy or not. That, in summary, was because the criminalisation of assisted suicide in the UK under section 2(1) constitutes an interference with the article 8(1) right to respect for private life of the claimant and interested party, which is neither ‘in accordance with the law’ (article 8(2)) nor proportionate in the absence of any policy setting out the circumstances in which a prosecution will be brought.
The challenge distinguished Ms Purdy’s case from the case of Diane Pretty. In R (Pretty) v DPP  1 AC 800 and the subsequent Strasbourg case of Pretty v United Kingdom  35 EHRR 1, Diane Pretty sought an immunity from prosecution for her husband from the DPP if her husband assisted her to die, whereas in this case what was sought was disclosure of the criteria that the DPP would take into account in deciding whether to prosecute.
Background and practiceThe background to the issue is this: to date, 115 UK residents are known to have travelled to Dignitas in Switzerland to have an assisted suicide, helped at various stages of the process by family members or friends. Moreover, the evidence shows that a doctor and members of Friends at the End have helped people to travel to Switzerland purely for humanitarian reasons.
A survey of the UK residents who accompanied loved ones to Dignitas, carried out for Debbie’s case, showed unanimous support for the Dignitas service, and overwhelming confirmation that the way in which people going to Dignitas had been able to end their lives was dignified and humane.
Of the 115 cases, only eight had been referred to the DPP for a decision as to whether or not the assistant should be prosecuted. In all but two of the cases the decision not to prosecute had been taken on the ground that there was insufficient evidence. In the other cases, prosecutions had not proceeded on grounds that it was not in the public interest to do so.
Faced with this disparity, Ms Purdy felt that the law was unclear and the DPP should explain what factors he would take into account and weigh in the balance in deciding whether to prosecute or not.
The wider public significance of the case is demonstrated by the fact that more than 800 UK residents are members of Dignitas, indicating that they have contemplated or are contemplating suicide. If each person is accompanied by two people on average, at the very least about 1,600 people could be liable to prosecution.
It was argued for Ms Purdy that, given the gravity of the consequences for her husband (up to 14 years’ imprisonment), the law should provide her with clarity so that she and her husband could regulate their conduct accordingly. This places them in what the Court of Appeal described as ‘an impossible dilemma’ R (Purdy) v Director of Public Prosecutions  EWCA Civ 92:  All ER(D) 197 (Feb) (para 9).
The Court of Appeal expressed considerable sympathy for the situation in which Ms Purdy and Mr Puente found themselves in. However, the Court said that it was unable to find in Ms Purdy’s favour on either aspect of her argument, as the House of Lords in Pretty had decided that article 8 was not engaged. In Pretty v Director of Public Prosecutions, the House of Lords had found that article 8 was directed to the protection of personal autonomy while the person was alive, but did not confer a right to decide when or how to die. The European Court of Human Rights disagreed (see Pretty v United Kingdom  35 EHRR 1, para 67).
The Court of Appeal held that it was bound to follow the decision of the House of Lords and was not at liberty to apply the ruling of the Strasbourg court, Kay v Lambeth London Borough Council  UKHL 10,  2 AC 465 paragraphs 28, 42-45, per Lord Bingham of Cornhill: R(RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311 paragraph 64 per Lord Neuberger of Abbotsbury.
As to the question of whether the requirements of article 8(2) were satisfied, the Court of Appeal said that the failure to promulgate a crimespecific policy relating to assisted suicide did not make the effect of section 2(1) of the 1961 act unlawful, nor was it not in accordance with the law.
House of Lords judgmentThe House of Lords, comprising Lord Phillips of Worth Matravers, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury, in a unanimous judgment in favour of Ms Purdy, said that the House was free to depart from its earlier decision in Pretty and to follow the Strasbourg court’s decision in Pretty. They said the present law does interfere with Ms Purdy’s right to respect for private life. She has the right to determine how to spend the closing moments of her life, which is part of the act of living. Ms Purdy wishes to avoid an undignified and distressing end to her life. This should be respected.
Second, the committee required the DPP to prepare an offence-specific policy identifying the factors the DPP would take into account when deciding to exercise his discretion whether or not to prosecute, as the Code for Crown Prosecutors offered virtually no guidance in this sensitive area. The convention test of accessibility and forseeability was not met in the absence of an offence-specific policy.
Lords Hope and Neuberger emphasised that it is not part of their function to change the law in order to decriminalise assisted suicide. This was a matter for parliament. However, they went on to say that their function as judges is to say what the law is and, if it is uncertain, to clarify it. Also, it is ‘patently obvious that the issue [is] not going to go away’.
The Purdy case has fuelled the debate over assisted suicide. The fact that the composer, Sir Edward Downes, and his wife both travelled to Dignitas in Switzerland for an assisted suicide in July has made more people sit up and take notice of how topical this issue is. The Royal College of Nursing subsequently announced that it is taking a neutral position on assisted suicide, having previously been against it.
A Populus opinion poll around the same time found that 74% of people wanted doctors to be allowed to help terminally ill patients end their lives, and six out of 10 also wanted to be allowed to help the dying without fear of prosecution.
A question that is increasingly being asked is why people who are terminally or incurably ill should have to travel to Switzerland or elsewhere, rather than be able to die at home surrounded by their loved ones.
A number of other jurisdictions, namely Switzerland, Belgium, Holland, Luxembourg and the US state of Oregon all have assisted suicide laws and have managed to devise safeguards – safeguards with regard to which there is little evidence of abuse, if research on the area is to be believed. Why can’t this be done here?
It is fitting that a case of this importance should be the very last case on which judgment has been given by the old House of Lords, and that it should involve such fundamental issues which extend the ambit of article 8 of the European Convention on Human Rights.
Saimo Chahal, who acted for Ms Purdy, is a partner and head of the civil liberties and social welfare team at Bindmans.