R (on the application of Pretty) v. Director of Public Prosecutions

The applicant, a U.K. national, alleged that section 2(1) of the Suicide Act 1961, which contained an offence of aiding and abetting suicide under English law, violated her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), in particular Articles 2 (right to life), 3 (freedom from torture or to inhuman or degrading treatment or punishment), 8 (right to respect for his private and family life), 9 (right to freedom of thought, conscience and religion) and 14 (prohibition of discrimination).

The applicant was dying of a physically debilitating disease with no cure, but her intellect and capacity to make decisions were unimpaired. Given that the final stages of the disease were humiliating and distressing, she wished to control how and when she died, although she was physically unable to do so. Committing suicide is lawful under English law, and it is a crime to assist another to commit suicide under the Suicide Act. The Director of Public Prosecutions (DPP) refused the applicant’s request to guarantee her husband freedom from prosecution if he helped her commit suicide. The Aaplicant sought at first instance (1) a declaration that the DPP had acted unlawfully in refusing to give an undertaking that her husband would not be prosecuted, and (2) in the alternative, a declaration that the Prohibition was incompatible with the Convention and her rights under section 4 of the Human Rights Act.

The Divisional Court refused her application at first instance. The applicant appealed to the House of Lords. The House of Lords was to consider whether any of the articles of the Convention require a member state to render assisted suicide as lawful and whether the DPP should have considered an undertaking not to prosecute.

The Court found no violation of Articles 2, 3, 8, 9, or 14 of the Convention. The Court held that the DPP did not have the ability to grant immunity from prosecution and that the Prohibition under UK law was compatible with the Convention. In particular, the Court held that: Article 2 (right to life) provides a right not to be deprived of life by way of intentional human intervention, not a right to die; Article 8 (right to respect for his private and family life) prohibits interference with the way in which an individual leads his life and does not relate to the manner in which he wishes to die; and the DPP has discretion whether or not to prosecute under the Prohibition in the Suicide Act, but that discretion can only be exercised in past – not future – events.

The Applicant’s appeal was dismissed.

“ . . . far from suggesting that the state is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the state is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of art 3. The decision how far the state should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member states, taking account of all relevant interests and considerations.” Para. 12.

“The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt tocommit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as s 2(1) makesclear.” Para. 35.

“The purpose of art 2(1) is clear. It enunciates the principle of the sanctity of life and provides a guarantee that no individual 'shall be deprived of life' by means ofintentional human intervention. The interpretation now put forward is the exact opposite, viz a right of Mrs Pretty to end her life by means of intentional human intervention.” Para. 59.

“. . .  the guarantee under art 8 prohibits interference with the way in which an individual leads his life and it does not relate to the manner in which he wishes to die.” Para 61.