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

Article 8 protects personal autonomy in deciding how and when to end one’s life. A legal prohibition which deters the assistance needed to exercise that choice therefore engages the right to respect for private life.

Where prosecution depends on a broadly expressed discretion, the applicable law must identify the scope and manner of that discretion with sufficient accessibility and foreseeability. The general Code for Crown Prosecutors did not provide adequate guidance for compassionate assistance given to a competent, severely and incurably disabled person seeking to travel abroad for a lawful assisted suicide.

The Director of Public Prosecutions was therefore required to publish an offence-specific policy identifying the relevant factors for and against prosecution. This did not confer immunity or alter the statutory offence.

R (on the application of Purdy) v Director of Public Prosecutions concerned a woman with progressive multiple sclerosis who wished, when her condition became unbearable, to travel to a country where assisted suicide was lawful. Her husband was willing to assist her, but she would not ask him to do so without clearer information about the risk of prosecution under section 2(1) of the Suicide Act 1961.

The Director declined to publish an offence-specific policy explaining how the discretion under section 2(4) would be exercised. The Court of Appeal, [2009] EWCA Civ 92, rejected the contention that article 8 was engaged and held that the statute and general prosecution code provided sufficient legal certainty.

The central issues were whether the decision about the manner and timing of death fell within private life under article 8(1), and whether the Director’s prosecutorial discretion was regulated with sufficient accessibility and foreseeability to be “in accordance with the law” under article 8(2).

1. Disposition. The House unanimously allowed the appeal. Lord Hope of Craighead delivered the leading speech on the order, which Lord Phillips, Baroness Hale, Lord Brown and Lord Neuberger supported. The Director was required to publish an offence-specific policy identifying the facts and circumstances relevant to consent for a prosecution under section 2(1) of the Suicide Act 1961.

2. Article 8(1). Per Lord Hope, supported in separate speeches by Baroness Hale, Lord Brown and Lord Neuberger, personal autonomy includes a competent person’s choice concerning the closing stages of life. The House departed from the majority holding in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 that article 8 did not extend to the manner in which a person wished to die. It adopted the approach of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1. The prohibition’s effect on the appellant’s ability to decide when to travel engaged article 8(1).

3. Legality under article 8(2). Per Lord Hope, Convention legality requires a domestic legal basis, accessibility and sufficient precision to permit foreseeable regulation of conduct, and protection against arbitrary exercise of discretionary power. The general Code for Crown Prosecutors formed part of the relevant law. It normally supplied adequate guidance, but its general public-interest factors offered almost no useful assistance in the exceptional class of compassionate assisted-suicide cases before the House.

4. Prosecutorial policy. Per Lord Hope, consistency and protection against arbitrary decision-making required clearer guidance for cases involving a competent, terminally ill or severely and incurably disabled person who freely sought assistance to travel where assisted suicide was lawful. Lord Brown and Lord Neuberger likewise regarded a custom-built statement of aggravating and mitigating factors as necessary. Baroness Hale emphasised autonomy, capacity, freedom from pressure and the assistant’s motive as particularly important considerations, while leaving the policy’s formulation to the Director.

5. Limits of the decision. The policy need not be exhaustive, and every prosecution decision remained fact-sensitive. The House neither created an immunity nor decriminalised assisted suicide; any alteration of the offence was for Parliament. Lord Phillips, Baroness Hale and Lord Neuberger declined finally to decide whether section 2(1) covered domestic assistance for a suicide abroad. The substantial risk of prosecution was sufficient to determine the article 8 issue.

1. House of Lords: Unanimously allowed the appeal and required the Director of Public Prosecutions to publish an offence-specific policy governing decisions whether to consent to prosecution under section 2(1) of the Suicide Act 1961.
2. Court of Appeal: In [2009] EWCA Civ 92, rejected both branches of the appellant’s case. It considered itself bound by the domestic decision in R (Pretty) v Director of Public Prosecutions and held that the statute was sufficiently certain notwithstanding the absence of an offence-specific prosecution policy.
3. Divisional Court: The proceedings had previously been determined by the Divisional Court. Its citation and formal order are not stated in the judgment.