Purdy, R (on the application of) v Director of Public Prosecutions  UKHL 45 (30 July 2009) In this case, the House of Lords found that art 8 of the European Convention of Human Rights compelled the DPP to issue specific guidelines as to when prosecution would be recommended for a person who had assisted another to commit suicide.
Debbie Purdy (the Applicant) wanted to die. In 1995, she was diagnosed with primary progressive multiple sclerosis, an incurable condition. She was aware that there would come a time when she would consider her existence unbearable. When that time came, she wanted to be able to travel to a country where assisted suicide was lawful and end her own life. She could not, however, do this alone and, as Lord Hope noted, '[h]er husband, Mr Omar Puente, [was] willing to help her make [that] journey'.
The Suicide Act and the Code for Crown Prosecutors
While suicide is not illegal in the UK, the act of facilitating another's suicide is an offence under the Suicide Act 1961, 9 & 10 Eliz 2, c 60 (the Suicide Act). Section 2(1) of the Suicide Act reads as follows:
A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.
This is qualified by s 2(4) of the Suicide Act, which notes that no proceedings shall be instituted for an offence under s 2(1) except by or with the consent of the Director of Public Prosecutions.
A Crown Prosecutor exercising the discretion described in s 2(4) is required to do so according with the Code for Crown Prosecutors, issued by the DPP under s 10 of the Prosecution of Offences Act 1985 (UK) c 23. It provides general guidelines as to when prosecutorial discretion should be used to institute proceedings for an offence. It is not specifically written with s 2(1) of the Suicide Act in mind.
Omar Puente and the Suicide Act
In light of the foregoing, the Applicant was faced with an uncertainty. If her husband assisted her in carrying out her wishes, would he be charged under s 2(1) of the Suicide Act, or would the DPP decline to prosecute him under s 2(4)?
The DPP had utilised the discretion conferred by s 2(4) and failed to pursue those who had committed similar offences in the past. Indeed, in one particular case, that of Daniel James, the DPP had gone so far as to issue a public statement explaining his determination that prosecution was unwarranted under the Code. Despite this, the Applicant argued, the principles surrounding the application of s 2(4) remained uncertain.
The Applicant argued that ss 2(1) and 2(4) of the Suicide Act interfered with her right to privacy under art 8(2) of the European Convention. This states that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'. Article 8(2) further provides that '[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society'.
The Applicant's argument was therefore twofold:
- first, it was argued that s 2(1) of the Suicide Act constituted an infringement of the Applicant's right to privacy by regulating the way in which she might choose to end her life by prohibiting assistance from others; and
- second, the Applicant argued that the Suicide Act violated art 8(2) of the European Convention and more particularly, the principle of legality contained therein.
The first question for determination by the House of Lords was whether s 2(1) of the Suicide Act interfered with the Applicant's right to privacy under art 8(1) of the European Convention. The Court of Appeal below reluctantly found that it did not, based on the House of Lords precedent R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department Intervening)  1 AC 800. In Pretty, the Law Lords held that art 8 was directed to the protection of personal autonomy while the person was alive, but did not confer a right to decide when or how to die. Accordingly, it was held, s 2(1) of the Suicide Act did not infringe the right to privacy.
When Pretty was appealed to European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, Strasbourg disagreed with the House of Lords' assessment, holding that the right to privacy was not confined solely to those decisions that aimed to perpetuate life, as opposed to ending it. The Court of Appeal in Purdy, however, remained bound by the decision in Pretty.
When the matter was appealed to the House of Lords, however, the Court departed from Pretty, and followed the Strasbourg decision in that case. Lord Hope justified this departure at , noting:
[I]t is obvious that the interests of human rights law would not be well served if the House were to regard itself as bound by a previous decision as to the meaning or effect of a Convention right which was shown to be inconsistent with a subsequent decision in Strasbourg.
Article 8(2) and the principle of legality
The principle of legality is a fundamental aspect of the rule of law, and is ingrained in the words of art 8(2) of the European Convention. Insofar as the Convention is concerned, legality entails the following questions, as extracted by Lord Hope at :
- Is there a legal basis in domestic law for the relevant restriction on human rights?
- Is the law in question accessible to the individual and sufficiently precise so as to allow him or her to regulate conduct without breaking the law?
- Assuming the above are present, is the law being applied in such a way as to be arbitrary or in bad faith?
It is important to note that the word 'law' as described above, includes not only statute and common law, but inferior sources such as policy statements, practice notes and, vitally, prosecutorial guidelines.
The Applicant addressed these questions not towards s 2(1) of the Suicide Act, but s 2(4). It was argued that, as the Code was not written with s 2(1) in mind and, to a certain extent, adopted a different set of principles in determining whether a prosecution was advisable, it did not provide a clear guide as to when a prosecution would be launched, as required by the second question above.
The House of Lords agreed, noting at  that the statement issued by the DPP when justifying his decision not to prosecute the James family showed that 'in a highly unusual and extremely sensitive case of this kind, the Code offers almost no guidance at all'.
Accordingly, their Lordships ordered that the DPP produce a set of guidelines exclusively for the Suicide Act. Once this was done, the Applicant would be able determine the risk of prosecution of her husband in the event that he was to help her end her life.
Relevance to the Victorian Charter
Assisted suicide and the right to privacy in Victoria
Section 6B of the Crimes Act 1958 (Vic) provides that an attempt to aid, abet, counsel or procure another's suicide is an offence. If Purdy is adopted, then s 6B violates the right to privacy expressed in s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
While the Victorian statute books contain no equivalent to s 2(4) of the Suicide Act, this does not deprive Purdy of relevance for the Charter. For all offences under Victorian law, the Office of Public Prosecutions possesses a discretion as to whether the perpetrator of an offence should be charged and, as in the UK, it has released a code as to the way that this discretion is to be exercised (see OPP, Policy 2: The Prosecutorial Discretion (2008) OPP). Additionally, s 38(1) of the Charter provides that it is unlawful for a public authority (including the OPP) to act in a way that is incompatible with a human right.
If the logic of Purdy is adopted in Victoria, therefore, the OPP should produce specific guidelines as to when unusual and sensitive offences such as assisting another person's suicide will be prosecuted.
The principle of legality under the Charter
Questions remain, however, as to whether the principle of legality as embodied in art 8(2) of the European Convention can be imported to s 13 of the Charter, as the latter does not include wording that expressly introduces the principle of legality. That said, considering the principle's status as a cornerstone of the rule of law, it would be surprising if it could not be implied into the Charter.
The most likely candidate for this introduction is s 7(2) of the Charter, which provides that a right can only be limited to an extent that is justifiable in a democratic society. Given that most free societies would adopt the principle of legality unquestioningly, s 7(2) arguably introduces similar considerations to art 8(2) of the European Convention. Given the nascent character of the Charter, however, further judicial interpretation will be required before this position can be stated with certainty.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/45.html.
Cameron Miles is a Law Graduate with Allens Arthur Robinson