(back to preceding text)

    16. Article 8 of the convention provides:

"Right to respect for private and family life

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    17. Counsel for Mrs Pretty submitted that this article conferred a right to self-determination: see X and Y v Netherlands (1985) 8 EHRR 235; Rodriguez v Attorney General of Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1) of the 1961 Act interferes with this right of self-determination: it is therefore for the United Kingdom to show that the interference meets the convention tests of legality, necessity, responsiveness to pressing social need and proportionality: see R v A (No 2) [2001] 2 WLR 1546; Johansen v Norway (1996) 23 EHRR 33; R (P) v Secretary of State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part of an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v United Kingdom (1999) 29 EHRR 493 at p 530, para 89. The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and, in the case of the Secretary of State, whether the interference with Mrs Pretty's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features of Mrs Pretty's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence of death, the absence of harm to anyone else, the absence of far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account of particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R v United Kingdom (1983) 33 DR 270 and Sanles v Spain [2001] EHRLR 348.

    18. The Secretary of State questioned whether Mrs Pretty's rights under article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on article 8 founders on exactly the same objection as the attempt based on article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary of State also submitted that, if it were necessary to do so, section 2(1) of the 1961 Act and the current application of it could be fully justified on the merits. He referred to the margin of judgment accorded to member states, the consideration which has been given to these questions in the United Kingdom and the broad consensus among convention countries. Attention was drawn to Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 in which the criminalisation of consensual acts of injury was held to be justified; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger.

    19. The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of the Supreme Court of Canada in Rodriguez v Attorney General of Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs Pretty; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time of her choosing. While suicide in Canada was not a crime, section 241(b) of the Criminal Code was in terms effectively identical to section 2(1) of the 1961 Act. The appellant based her claims on the Canadian Charter of Rights and Freedoms which, so far as relevant, included the following sections:

"(1)  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

(7)  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

(12)  Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

(15)  (1)  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

The trial judge rejected Ms Rodriguez' claim, because (as his judgment was summarised at p 144):

"It was the illness from which Ms Rodriguez suffers, not the state or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death."

He found no breach of section 12 and said

"To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person."

He also held that section 241 did not discriminate against the physically disabled.

    20. The British Columbia Court of Appeal held by a majority (at p 148) that whilst the operation of section 241 did deprive Ms Rodriguez of her section 7 right to the security of her person, it did not contravene the principles of fundamental justice. McEachern CJ, dissenting, held (at p 146) that there was a prima facie violation of section 7 when the state imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person, and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice.

    21. In the Supreme Court opinion was again divided. The judgment of the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course of his judgment Sopinka J said (at p 175):

"As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur."

He continued (p 175):

"I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person."

He then continued (at pp177-178):

"There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own . . . In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. The appellant's security interest (considered in the context of the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice."

He concluded (at p 189) that:

"Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society."

With reference to section 1 of the Canadian Charter, Sopinka J said (at pp 192-193):

"As I have sought to demonstrate in my discussion of section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the 'slippery slope'. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception."

He rejected the appellant's claims under sections 12 and 15.

    22. Lamer CJ dissented in favour of the appellant, but on grounds of discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not of section 15 but of section 7. She saw the case as one about the manner in which the state might limit the right of a person to make decisions about her body under section 7 of the charter (p 194). At p 195 she said:

"In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice, thereby violating section 7 of the Charter. . . . It is part of the persona and dignity of the human being that he or she have the autonomy to decided what is best for his or her body."

She held (p 197) that

"it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent."

Cory J also dissented, agreeing with Lamer CJ and also McLachlin J.

    23. It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs Pretty understandably places reliance in particular on the judgment of McLachlin J, in which two other members of the court concurred. But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security of the person appears only in article 5(1), on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v Netherlands, above. But article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the article has reference to the choice to live no longer.

    24. There is no Strasbourg jurisprudence to support the contention of Mrs Pretty. In R v United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2 of the 1961 Act constituted a violation of his right to respect for his private life under article 8 and also his right to free expression under article 10. In paragraph 13 of its decision the commission observed:

"The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life in the manner elaborated above. While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts of aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act."

This somewhat tentative expression of view is of some assistance to Mrs Pretty, but with reference to the claim under article 10 the commission continued (in para 17 of its decision at p 272):

"The Commission considers that, in the circumstances of the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account of the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognises the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy."

That conclusion cannot be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the convention.

    Sanles v Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is of some interest that she based her claims on articles 2, 3, 5, 9 and 14 of the convention but not, it seems, on article 8.

    26. I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her convention right under article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of article 8(2). In considering that question I would adopt the test advocated by counsel for Mrs Pretty, which is clearly laid down in the authorities cited.

    27. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence of opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp 60-61, para 135).

    28. Following the decision in Airedale NHS Trust v Bland [1993] AC 789 a much more broadly constituted House of Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p 11, para 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p 54, para 262):

"As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection."

The government in its response (May 1994, Cm 2553) accepted this recommendation:

"We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk."

A similar approach is to be found in the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. This included the following passage (at pp 2-4):

"9.  The Assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: . . .

(c)  by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:

(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that 'no one shall be deprived of his life intentionally';

(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;

(iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death."

It would be by no means fatal to the legal validity of section 2(1) of the 1961 Act if the response of the United Kingdom to this problem of assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all convention countries except the Netherlands, but even if the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr Pretty of liability under article 294 of the Dutch Criminal Code if he were to assist Mrs Pretty to take her own life as he would wish to do.

    29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully-informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First, "Laws are not made for particular cases but for men in general." Second, "To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied" (Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed, 1970, at pp 735, 496). It is for member states to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R v United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p 61, para 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p 49, para 239):

"We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life."

It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.

    30. If section 2(1) infringes any convention right of Mrs Pretty, and recognising the heavy burden which lies on a member state seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the convention; it is simply to say that the present legislative and practical regime do not offend the convention.

Article 9 of the convention

    31. It is unnecessary to recite the terms of article 9 of the convention, to which very little argument was addressed. It is an article which protects freedom of thought, conscience and religion and the manifestation of religion or belief in worship, teaching, practice or observance. One may accept that Mrs Pretty has a sincere belief in the virtue of assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences of conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement of her right, the justification shown by the state in relation to article 8 would still defeat it.

Article 14 of the convention

    32. Article 14 of the convention provides:

"Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Mrs Pretty claims that section 2(1) of the 1961 Act discriminates against those who, like herself, cannot because of incapacity take their own lives without assistance. She relies on the judgment of the European Court of Human Rights in Thlimmenos v Greece (2000) 31 EHRR 411 where the court said (at p 424, para 44):

"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."

    33. The European Court of Human Rights has repeatedly held that article 14 is not autonomous but has effect only in relation to convention rights. As it was put in Van Raalte v Netherlands (1997) 24 EHRR 503 at p 516, para 33:

"As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter."

See also Botta v Italy (1998) 26 EHRR 241 at p 259, para 39.

    34. If, as I have concluded, none of the articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this article must fail on this ground.

    35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. 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 to commit) 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 section 2(1) makes clear.