Pretty v Director of Public Prosecutions and Secretary of State for the Home Department

The House of Lords dismissed the appeal by Mrs Dianne Pretty seeking a proleptic undertaking from the Director of Public Prosecutions that her husband would not be prosecuted under section 2(1) of the Suicide Act 1961 if he assisted her to commit suicide. The court held that none of the Convention articles relied upon (articles 2, 3, 8, 9 and 14) compels the state to permit assisted suicide or renders section 2(1) incompatible with the European Convention on Human Rights as given effect by the Human Rights Act 1998. The court emphasised (i) the distinction between a right to life and a putative right to die under article 2, (ii) the limited scope of article 3 positive obligations and why those do not require permitting assisted suicide, and (iii) that article 8 protects private life in living but does not establish a Convention right to choose the manner of death; any interference under article 8 would in any event be justifiable. It was also held that the Director had no power to give the anticipatory immunity sought and, even if he had such a power, it would have been wrong to exercise it in the circumstances.

The appellant, Mrs Dianne Pretty, suffers from advanced motor neurone disease and sought a declaration that the Director of Public Prosecutions was obliged to give an advance undertaking under section 2(4) of the Suicide Act 1961 not to consent to the prosecution of her husband if he assisted her to commit suicide. The Divisional Court rejected the judicial review claim; three points of public importance were certified and the case proceeded to the House of Lords as an expedited appeal.

The principal issues were:

• Whether any Convention right (articles 2, 3, 8, 9 or 14) as incorporated by the Human Rights Act 1998 gives Mrs Pretty a right to be assisted to die or otherwise makes section 2(1) incompatible with the Convention;
• Whether the Director had power to give, and was obliged by the Convention to give, a proleptic undertaking not to prosecute;
• Whether refusal to give the undertaking amounted to unlawful action by a public authority under section 6 of the Human Rights Act 1998.

The House of Lords reasoned that article 2 protects the right to life and does not imply a right to die or to obtain another's deliberate assistance in ending life. Article 3's absolute prohibition on inhuman or degrading treatment does not, on these facts, impose a positive obligation to permit assisted suicide; the cases relied upon were distinguishable and the state enjoyed a margin of appreciation in balancing individual suffering against the risk to the vulnerable. Article 8 protects aspects of personal autonomy in living, but it does not extend to a Convention right to be assisted to die; even if article 8 were engaged the interference constituted by section 2(1) was lawful and proportionate given the legitimate aim of protecting life and the vulnerable. Article 14 was inapplicable absent engagement of a substantive Convention right. Separately, the Director had no statutory power to grant the anticipatory immunity requested and, even if he had, it would have been inappropriate to do so.

The court concluded that the remedy sought was one for Parliament and not for the courts.

Appeal dismissed. The court held that (i) the Convention does not confer a right to assisted suicide and section 2(1) of the Suicide Act 1961 is not incompatible with articles 2, 3, 8, 9 or 14 of the European Convention on Human Rights; (ii) the Director of Public Prosecutions had no power to give the proleptic undertaking sought and, in any event, would have been wrong to grant it.

Application for judicial review heard in the Queen's Bench Divisional Court (judgment dismissing the application). Three points of public importance were certified by the Divisional Court. Permission to appeal was granted and the appeal was heard by the House of Lords, which delivered judgment in [2001] UKHL 61 on 29 November 2001.