Purdy, R (on the application of) v Director of Public Prosecutions & Anor

A lower court must follow a binding domestic precedent on the scope of a Convention right, even where later Strasbourg reasoning appears wider, unless the case falls within the very limited exceptional category identified in Kay v Lambeth LBC. The statutory offence of assisting suicide may be broadly framed where the breadth is necessary to cover varied circumstances. A consent-to-prosecute provision may legitimately confer flexibility on the prosecuting authority. The requirement that an interference be “in accordance with the law” is satisfied where the discretion is constrained by a clear general prosecution code, rationality and reasonableness requirements, and judicial review. No offence-specific guidance is required merely because it might provide greater certainty.

The claimant, who suffered from progressive multiple sclerosis, sought judicial review and relief under section 7 of the Human Rights Act 1998. She wished to know whether her husband would be prosecuted if he helped her arrange an assisted suicide abroad. She accepted that, following R (Pretty) v DPP, the court could not grant advance immunity from prosecution. Her case instead challenged the Director of Public Prosecutions’ failure to publish offence-specific guidance explaining when consent to prosecution under section 2(4) of the Suicide Act 1961 would be given.

The central questions were whether section 2(1) engaged article 8(1) of the Convention and, if so, whether the statutory scheme was sufficiently clear and foreseeable to satisfy article 8(2).

1. Article 8(1). The court, in a judgment to which both judges contributed, held that it was bound by the House of Lords’ decision in R (Pretty) v DPP that article 8 was not engaged on materially indistinguishable facts. The wider and more tentative reasoning of the European Court of Human Rights did not permit this court to depart from that domestic precedent. The narrow exception recognised in Kay v Lambeth LBC, exemplified by D v East Berkshire Community NHS Trust and X (Minors) v Bedfordshire County Council, was confined to truly exceptional circumstances, which were absent.
2. Article 8(2). The court nevertheless considered the alternative issue. Section 2(4) was intended to provide flexibility in a sensitive area and to prevent inappropriate or vexatious prosecutions. It did not create a defence or exempt category; it conferred a discretion over prosecution.
3. The offence in section 2(1) was sufficiently clear because its broad wording enabled individuals to foresee that assisting another’s suicide would constitute a criminal offence. The discretion under section 2(4) was sufficiently constrained by the two-stage Code for Crown Prosecutors: the realistic prospect of conviction test followed, where satisfied, by a public-interest assessment. The discretion was also subject to administrative-law requirements of rationality and reasonableness, with judicial review and safeguards within criminal proceedings available for unlawful decisions.
4. The general Code, together with those legal safeguards, supplied the minimum protection against arbitrariness required by article 8(2). A specific code might assist clarity, but could risk becoming an impermissible advance undertaking about hypothetical prosecutions and was not legally required.
5. The claimant therefore established no breach of article 8. The claim failed. The court expressed sympathy for the claimant and observed that changing the widely drawn offence was a matter for Parliament.

First-instance judicial review proceedings. No earlier judgment in the same proceedings is stated.