Summary
Section 2(1) of the Suicide Act 1961 creates a clear criminal prohibition on assisting suicide. Courts cannot create exceptions or suspend its operation; legislative change is for Parliament.
The consent requirement in section 2(4) provides central control over prosecutions and permits case-specific public-interest assessment. It is not confined to avoiding penalties. The Director of Public Prosecutions must issue general guidance, but need not publish an offence-specific policy. The absence of such a policy does not make the law insufficiently certain or incompatible with Article 8.
The Court of Appeal remained bound by the House of Lords decision in Pretty despite the Strasbourg court’s different approach to Article 8(1).
Factual background
The appellant had progressive multiple sclerosis and wished, if necessary, to travel abroad to end her life with her husband’s assistance. She sought judicial review of the Director of Public Prosecutions’ refusal to publish an offence-specific policy explaining when assistance with suicide would be prosecuted.
The Divisional Court held that Article 8(1) was not engaged, and that the general Code for Crown Prosecutors, together with administrative-law safeguards, provided sufficient clarity and foreseeability. Permission to appeal was granted.
The appeal concerned whether the Court of Appeal was bound by the House of Lords decision in Pretty despite the subsequent Strasbourg judgment, and whether the absence of a specific policy made section 2 of the Suicide Act 1961 contrary to Article 8(2).
Held
- Appeal dismissed. The statutory prohibition was clear. Section 2(1) of the Suicide Act 1961 did not admit judicially created exceptions. Parliament alone could decriminalise assisted suicide or identify exceptions.
- The House of Lords decision in Pretty was binding. Under Kay v Lambeth LBC and Regina (RJM) v Secretary of State for Work and Pensions, the Court of Appeal could depart from such a precedent in only very exceptional circumstances of an extreme character. The difference between the House of Lords and Strasbourg decisions did not meet that standard.
- The Court therefore held that the appellant’s Article 8(1) rights were not engaged. The Strasbourg court’s conclusion that Article 8 was engaged could not be followed in preference to the binding domestic authority.
- Alternatively, the absence of an offence-specific policy did not make the statutory scheme unlawful under Article 8(2). The relevant inquiry required legality, a legitimate aim and necessity in a democratic society. Section 2(4) was an important part of the enforcement system. It secured central control, consistency, attention to mitigating factors and protection against inappropriate private prosecutions. The reasoning in Dunbar v Plant did not provide an exhaustive account of the provision’s purpose.
- The Director’s statutory duty under section 10 of the Prosecution of Offences Act 1985 was to issue general guidance. He could issue offence-specific guidance, but was not obliged to do so. The general Code, the DPP’s published reasons in the Daniel James case and ordinary administrative-law safeguards gave sufficient protection against arbitrary decision-making. The DPP could not provide the case-specific assurance or effective immunity sought.
- The Court added that it retained safeguards against abuse of process. A prosecution could be dismissed as abusive, and a court could order a discharge where no penal sanction was appropriate.
The court’s approach to earlier authorities
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Appellate history
- Court of Appeal (Civil Division) Dismissed the appeal and upheld the Divisional Court’s conclusion.
- Queen’s Bench Division, Divisional Court Held that Article 8(1) was not engaged and that the general Code for Crown Prosecutors and administrative-law remedies satisfied the applicable standards of clarity and foreseeability. Permission to appeal was granted.
Appeal route
- Appealed fromNot stated in the judgmentThis appealappeal dismissed
- This judgment [2009] EWCA Civ 92 Court of Appeal (Civil Division)
- Appealed to[2009] UKHL 45Outcomeappeal allowed unanimously; director of public prosecutions required to promulgate an offence-specific policy
Key cases cited
30 authorities cited.
- R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2008] UKHL 63
- R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty's Attorney General and another (Respondents)R (on the application of Countryside Alliance and others (Appellants) and others) v Her Majesty's Attorney General and another (Respondents) (Conjoined Appeals) [2007] UKHL 52
- Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) and Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants) [2006] UKHL 10
- JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC) [2005] UKHL 23
- Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30
- Regina v. Sectretary of State for the Home Department (Appellant) ex parte Razgar (FC) and two other actions [2004] UKHL 27
- Regina v Boyd, Regina v Hastie, Regina v Spear (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) Regina v Saunby, Regina v Clarkson, Regina v English, Regina v Williams, Regina v Dodds, Regina v Leese, Regina v Marsh, Regina v Webb, Regina v Ashby (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) (Conjoined Appeals) [2002] UKHL 31
- The Queen on the Application of Mrs Dianne Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61
- X (Minors) v Bedfordshire County Council [1995] 2 AC 633
- Airedale NHS Trust v Bland [1993] UKHL 17
- Broome v Cassell & Co Ltd (Cassell & Co Ltd v Broome) [1972] AC 1027
- JD & Ors v East Berkshire Community Health & Ors [2003] EWCA Civ 1151
- Dunbar v Plant [1998] Ch 412
- Hassan Chaush v Bulgaria (2002) 34 EHRR 1339
- Pretty v UK (2002) 35 EHRR 1
- Z v United Kingdom (2001) 34 EHRR 97
- Steel v United Kingdom (1999) 28 EHRR 603
- Goodwin v United Kingdom (1996) 22 EHRR 123
- Rodriguez v Attorney General of Canada [1994] 2 ORC 136
- Herczegfalvy v Austria (1992) 15 EHRR 347
- In re F (Mental Patient: Sterilisation) (F v West Berkshire HA) [1990] 2 AC 1
- X and Y v Netherlands (1985) 8 EHRR 235
- R v Hough (1984) CAR (S) 406
- Silver v. United Kingdom (1983) 5 EHRR 347
- Sunday Times v United Kingdom (1979) 2 EHRR 245
- Smedleys Ltd v Breed [1974] AC 839
- Schloendorff v Society of New York Hospital (1914) 105 NE 92
- London Street Tramways Co v London County Council [1898] AC 375
- Wallis
- R v United Kingdom 33 DR 270
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Cases citing this case
1 later case · 1 neutral
Most senior citing decisions:
- WB v W District Council [2018] EWCA Civ 928 considered
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