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

The House held that the Director of Public Prosecutions' discretion under section 2(4) of the Suicide Act 1961 to consent to prosecutions for assisting suicide must be exercised in a manner that is "in accordance with the law" for the purposes of article 8(2) of the European Convention on Human Rights. Article 8(1) (right to respect for private life) is engaged. Legal certainty requires that the public, prosecutors and police should be able to foresee the matters the Director will take into account; the general Code for Crown Prosecutors is not sufficiently precise for the narrow class of cases where a mentally competent person seeks assistance to travel abroad for an assisted suicide.

Accordingly the House allowed the appeal and required the Director to promulgate an offence-specific policy identifying the factors he will take into account when deciding whether to consent to a prosecution under section 2(1) of the Suicide Act 1961. The House did not finally decide the difficult question whether section 2(1) applies where the assisting acts occur in England and Wales but the suicide is effected abroad; that point was left for a future prosecution if necessary.

Background and facts: Ms Purdy, who suffers from a progressive and incurable neurological condition, wished to preserve the option of travelling to another jurisdiction (for example Switzerland) to obtain assistance to end her life when deterioration made that choice necessary. Her husband was prepared to assist her. Assisting another to commit suicide is an offence under section 2(1) of the Suicide Act 1961. Under section 2(4) prosecutions under section 2(1) may be instituted only with the consent of the Director of Public Prosecutions.

Procedural posture: Ms Purdy applied for relief requiring the Director to clarify the factors he would take into account in deciding whether to consent to prosecutions in cases of the kind she described. The case reached the House of Lords on appeal from the Court of Appeal ([2009] EWCA Civ 92).

Relief sought: declaration and order that the Director must publish an offence-specific prosecutorial policy identifying the factors for and against prosecution of those who assist a person to travel abroad for an assisted suicide.

Issues framed:

• Whether the restriction created by section 2(1) interfered with Ms Purdy’s right to respect for private life under article 8(1) ECHR;
• Whether, if article 8(1) is engaged, the Director’s discretion under section 2(4) is "in accordance with the law" (article 8(2)), that is accessible and formulated with sufficient precision to enable individuals to foresee the consequences of their actions and to protect against arbitrary decision-making.

Court’s reasoning: The majority held that article 8(1) is engaged because the choice about the manner and timing of one’s death, insofar as it concerns personal autonomy and dignity, falls within the scope of private life. The substantive requirements of article 8(2) require a legal basis and measures that are accessible and sufficiently foreseeable. Although the Code for Crown Prosecutors and the Director’s published decision in the Daniel James case provide some guidance, they do not identify with sufficient specificity the factors that will be decisive in the narrow and sensitive category of cases where a competent person seeks assistance to travel abroad for an assisted suicide. Given the importance of protecting both vulnerable persons and the autonomy of competent persons, the Director must publish an offence-specific policy identifying the factors he will take into account when deciding whether to consent to prosecution under section 2(1). The House did not resolve the question whether section 2(1) applies where the suicide occurs abroad; that issue was left open.

Outcome: appeal allowed; order made requiring the Director to promulgate a policy setting out the factors for and against prosecution in the narrowly defined class of assisted-travel cases.

Appeal allowed. The House held that article 8(1) of the European Convention on Human Rights is engaged and that the Director’s discretion under section 2(4) of the Suicide Act 1961 must be exercised "in accordance with the law". The general Code for Crown Prosecutors and isolated decisions (for example the Daniel James decision) do not afford sufficient accessibility and foreseeability for the narrow category of cases where a competent person seeks assistance to travel abroad for assisted suicide. The Director must therefore promulgate an offence-specific policy identifying the factors he will take into account when deciding whether to consent to prosecution under section 2(1). The House did not decide definitively whether section 2(1) applies where the assisting acts occur in England and Wales but the suicide is effected abroad; that point remains open.

On appeal to the House of Lords from the Court of Appeal: [2009] EWCA Civ 92. Earlier proceedings and the Divisional Court decisions are described in the judgment.