The Queen on the Application of Mrs Dianne Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department

Articles 2, 3 and 9 of the Convention do not confer a right to assisted suicide. Article 2 protects life and cannot yield a right to die through another’s intentional intervention. A refusal to grant advance immunity from prosecution is not treatment contrary to article 3.

Even if article 8 is engaged, a general prohibition on assisting suicide is a proportionate means of protecting life and vulnerable people. Article 14 cannot create a free-standing right to assistance. Decriminalising suicide created no right to commit it. The Director of Public Prosecutions has no power to grant prospective immunity for an offence yet to be committed.

Mrs Dianne Pretty had terminal motor neurone disease. She was mentally competent but physically unable to take her own life without help. Her husband was willing to assist if the Director of Public Prosecutions undertook in advance not to consent to a prosecution under section 2(1) of the Suicide Act 1961.

The Director refused. The Divisional Court dismissed Mrs Pretty’s application for judicial review, holding that the Director lacked power to give the undertaking, that his decision was not amenable to judicial review, and that section 2(1) was compatible with the Convention.

Mrs Pretty appealed. The issues were whether Convention articles 2, 3, 8, 9 or 14 required the undertaking or rendered the statutory prohibition incompatible, and whether the Director had power to confer advance immunity.

1. Appeal dismissed unanimously. Lord Bingham, Lord Steyn and Lord Hope delivered substantive speeches. Lord Hobhouse agreed on the Convention issues and independently addressed criminal liability and prosecutorial powers. Lord Scott agreed completely with the reasons of Lord Bingham, Lord Steyn and Lord Hope.

2. Per Lord Bingham, Lord Steyn and Lord Hope, article 2 protects the sanctity of life. It requires the state to refrain from unlawful intentional killing and, in appropriate circumstances, to safeguard life. It cannot be interpreted as conferring a right to die or to enlist another person’s intentional assistance in dying.

3. Per Lord Bingham, Lord Steyn and Lord Hope, article 3 was not engaged. Mrs Pretty’s suffering arose from disease, not treatment inflicted by the state. Refusal of prospective immunity was neither prohibited treatment nor direct state action comparable to removal of a gravely ill person. Any implied positive obligation was not absolute and could not require the state to legalise assisted suicide.

4. Lord Bingham and Lord Steyn concluded that article 8 did not protect a choice about the manner of death. Lord Hope considered that the closing moments of life engaged private life and self-determination, but that article 8 imposed no positive obligation to facilitate assisted suicide. All concluded that, if article 8 were engaged, section 2(1) of the Suicide Act 1961 was justified and proportionate. Parliament could rationally maintain a complete prohibition to protect life and vulnerable people from pressure and abuse.

5. Article 9 protected Mrs Pretty’s freedom to hold and express her belief in assisted suicide, but did not entitle her husband to act contrary to the criminal law. Article 14 had no application because no substantive Convention right conferred the claimed entitlement. Section 1 of the Suicide Act 1961 merely decriminalised suicide; it created no right to commit suicide.

6. Per Lord Bingham, Lord Steyn, Lord Hope and Lord Hobhouse, the Director could not grant prospective immunity for a crime yet to be committed. Section 2(4) permits a case-specific decision whether to consent to prosecution after relevant events. Although the Director may formulate and publish general prosecutorial policy, he cannot dispense with the criminal law. Lord Hope regarded judicial review as available in the exceptional circumstances because no criminal trial would otherwise occur. The refusal was lawful in any event.

1. House of Lords: The appeal was dismissed unanimously. The House upheld the Divisional Court’s refusal of judicial review relief and rejected the claim that section 2(1) of the Suicide Act 1961 was incompatible with the Convention.
2. Divisional Court of the Queen’s Bench Division: On 18 October 2001, Tuckey and Hale LJJ and Silber J dismissed the application. The court held that the Director lacked power to give the undertaking, that his decision was not amenable to judicial review, and that section 2(1) was Convention-compatible. No citation is stated in the judgment.