Human Rights and Assisted Suicide in England

“The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry. “Mercy killing”, as it is often called, is in law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated those who assisted the suicide of the non-vulnerable, it could not be administered fairly and in a way which would command respect.”

Ms Pretty then took her case to the European Court of Human Rights, which confirmed that the Convention for Human Rights did not confer a right to die, stating: “The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect.” The Court dismissed her case and Ms Pretty died in hospital, reportedly of “lung and chest problems”, rather than at home as she had wished.

Ms Purdy, on the other hand, has made her desire to kill herself in Switzerland very clear. Her case has followed similar human rights challenges to those of Ms Pretty, arguing the same Articles but on matters of state interference rather than simply on a right to life. She has made it clear that if she was unsuccessful in her battle against the State, it would mean she had to take her own life on her own, earlier than she otherwise would, and thereby save her husband from prosecution. Although this determination is a large factor in what brought her case to the attention of the press, it is her legal argument that has won her the day.

In his speech before the House, Lord Hope said the decision rested on three questions: the legal basis of the restriction on assisted suicides; whether the restriction was being applied arbitrarily; and whether the restriction was “sufficiently accessible … and sufficiently precise enough” for an individual to “forsee the consequences of his actions so he could regulate his conduct without breaking the law”.

Lord Hope said that the creation of the Special Crimes Division to supervise “prosecutions of exceptional sensitivity” and current case law “fell short of what was needed to satisfy the Convention tests of accessibility and foreseeability.” This, coupled with the view that the number of cases referred to the Special Crimes Division would only grow, with each case being highly sensitive and, of course, controversial, it was hard to see how the DPP could be excused from their requirement to clarify their position on when to prosecute for assisted suicide.

Lord Hope therefore allowed Ms Purdy’s appeal and in so doing informed the Director of Public Prosecutions that he must “promulgate an offence-specific policy identifying the facts and circumstances that he would take into account.” All four other Law Lords delivered concurring opinions.

It is clear therefore that Ms Purdy’s battle is obviously far from over. The DPP must now define exactly what assistance they will consider requires prosecution and what does not. The law itself has remained the same following the Lords’ decisions and in fact Lord Hope remarked that it was not the position of the Court to change the law. Ms Purdy has not won her battle on the human rights grounds she pushed for and she may yet find the DPP’s forthcoming policies still present a barrier to her but in light of this ruling it seems her options are going to be far clearer.