(back to preceding text)

    36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered. 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.

    37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any convention right.

The claim against the Director

    38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him: that he had no power to grant the undertaking which Mrs Pretty sought.

    39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend laws and the execution of laws without the consent of parliament was denied to the crown and its servants by the Bill of Rights 1688. Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty. He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone.

    40. I would dismiss this appeal.

LORD STEYN

My Lords,

    41. This is the first occasion on which the House of Lords has been asked to consider the question of assisted suicide by a terminally ill individual. She suffers from motor neurone disease and she has not long to live. The specific question before the House is whether the appellant is entitled to a declaration that the Director of Public Prosecutions is obliged to undertake in advance that, if she is assisted by her husband in committing suicide, he will not be prosecuted under section 2(1) of the Suicide Act 1961. If Mrs Pretty is entitled to this relief, it follows that it may have to be granted to other terminally ill patients or patients suffering excruciating pain as a result of an incurable illness, who want to commit assisted suicide. Her case is squarely founded on the Human Rights Act 1998, which incorporated the European Convention of Human Rights into English law. For her to succeed it is not enough to show that the European Convention allows member states to legalise assisted suicide. She must establish that at least that part of section 2(1) of the 1961 Act which makes aiding or abetting suicide a crime is in conflict with her Convention rights. In other words, she must persuade the House that the European Convention compels member states of the Council of Europe to legalise assisted suicide.

I. Motor neurone disease and assisted suicide.

    42. Mrs Dianne Pretty is 42 years old and has been married for 25 years. She lives with her husband, daughter and granddaughter. In November 1999 she was diagnosed as having motor neurone disease, a progressive neuro-degenerative disease of motor cells within the central nervous system. Its cause is unknown. No treatment can prevent the inevitable progression of this disease. It causes muscular weakness. Weakness of the arms and legs develop. It results in difficulty in swallowing and speaking. Eventually control of breathing deteriorates. Death usually occurs as a result of weakness of the breathing muscles in association with weakness of those muscles controlling speaking and swallowing leading to respiratory failure and pneumonia.

    43. In March 2000 Mrs Pretty became confined to a wheelchair. In December 2000 her speech and swallowing became affected. She is paralysed from the neck downwards. She has virtually no decipherable speech. The disease is now at an advanced stage. Her life expectancy is low. She has only months to live. Yet her intellect and her capacity to make decisions is unimpaired. She is able to give instructions to her lawyers and has done so.

    44. The suffering of Mrs Pretty is acute and she is frightened and distressed at her short but bleak future. She is in some physical pain but more importantly she is in constant dread of the day when she will no longer be able to swallow or breathe. She wishes to be spared the suffering and loss of dignity which is all that is left of life for her. She wishes to control when and how she dies. But for the disease she would be able to take her own life. The disease has, however, deprived her of the ability to commit suicide. Her solicitor explained in an affidavit that her wishes are that her husband should assist her in committing suicide.

The agreed statement of facts and issues states:

"The disease prevents her from committing suicide unaided. Thus she wishes her husband to assist her and he has agreed, if the DPP will undertake not to prosecute him. This proviso arises because absent such undertaking the appellant's husband will be liable to prosecution and imprisonment for the offence of assisting suicide under section 2(1) of the Suicide Act."

There is, however, no information available as to how it is proposed that her husband would assist her suicide. Moreover, there is no medical evidence showing what Mrs Pretty herself can do to carry out her wish. It has, however, been emphasised on her behalf that the final act of suicide will be carried through by her.

    45. The Suicide Act 1961 provides as follows:

"1. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.

2. (1) 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.

If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence.

. . .

(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."

Counsel explained that the assistance to be given by Mr Pretty to his wife would amount to aiding and abetting within the meaning of section 2(1) but that Mr Pretty's conduct would not extend to counselling and procuring suicide.

    46. The legal officer of Liberty asked the DPP to give an undertaking not to prosecute Mr Pretty if he assists in the suicide of his wife. The letter described Mrs Pretty's condition and explained what she wanted to do and made a number of legal submissions. It ended by saying:

"We very much hope you can provide us with the undertaking we seek, in view of our client's illness and the distress she is suffering we would be grateful if you would let us have a reply within 7 days of the date of this letter."

On 8 August 2001 the DPP replied:

"I should like first to express my deepest sympathy to Mrs Pretty and to her family for the terrible suffering that she and they are having to bear.

You have asked for an undertaking that the Director would not consent to a prosecution of Mr Pretty under Section 2 of the Suicide Act 1961, were he to assist his wife to commit suicide. You have made a number of points in relation to the European Convention on Human Rights; the Human Rights Act, 1998; and the Code for Crown Prosecutors. I have read your comments with care. Successive Directors --and Attorneys General - have explained that they will not grant immunities that condone, require, or purport to authorise or permit future commission of any criminal offence, no matter how exceptional the circumstances. I must therefore advise you that the Director cannot provide the undertaking that you seek.

Whilst I believe that I have no choice but to refuse your request, I deeply regret any further suffering that this refusal may cause."

Mrs Pretty issued an application for judicial review of the decision by the DPP not to give the undertaking.

    47. The principal relief sought by Mrs Pretty was a declaration that the DPP had acted unlawfully in refusing to give an undertaking that he would not consent to a prosecution of her husband for an offence under section 2(1) of the Suicide Act 1961 if he should assist her in committing suicide. The Secretary of State was joined as an Interested Party because Mrs Pretty also sought in the alternative a declaration in that section 2(1) of the 1961 Act is incompatible with section 4 of the 1998 Act.

    48. Permission to apply for judicial review was granted. On 18 October 2001 the Divisional Court (Tuckey and Hale LJJ and Silber J) in a detailed judgment of the court dismissed the application. The Divisional Court held: (i) the DPP has no power to grant the undertaking sought; (ii) in any event, a decision of the DPP to grant or refuse to grant the undertaking would not be amenable to judicial review; (iii) section 2(1) of the Suicide Act 1961 is not incompatible with the Convention.

    49. After giving judgment, the Divisional Court certified three points of general public importance: (1) Does the DPP have power under section 2(4) of the Suicide Act 1961 or otherwise to undertake not to consent to prosecute in advance of the relevant events occurring? (2) If so, was he required in this case to undertake not to prosecute Mr Pretty if he were to assist his wife to commit suicide having regard to her rights under articles 2, 3, 8, 9, and 14 of the Convention and his obligation to act compatibly with the Convention? (3) If not, is section 2(1) of the Suicide Act 1961 incompatible with articles 2, 3, 8, 9, and/or 14 of the Convention?

    50. An Appeal Committee granted leave to appeal. Given the circumstances the appeal was expedited. Subject to three points the shape of the case is very much as it was presented to the Divisional Court. There has inevitably been some deterioration of Mrs Pretty's condition. Secondly, there was a dispute at the hearing of the appeal before the House as to whether Mrs Pretty can correctly be described as vulnerable. It is not possible for the House to express any view on this point. In the context of euthanasia and assisted suicide the Report of the Select Committee on Medical Ethics, House of Lords Paper 21-I, 31 January 1994, there is a relevant passage regarding the class of vulnerable people. Among its reasons for not recommending a relaxation of the existing law regarding euthanasia and assisted suicide, the Select Committee observed, at 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."

While Mrs Pretty may or may not be vulnerable, there is in the context of euthanasia and assisted suicide undoubtedly a class of vulnerable people to be considered. This is important because the law must be stated for the generality of cases. The third point was a lack of agreement on what palliative care is available to Mrs Pretty. She apparently visits a hospice where she receives some medical and nursing care. In the final stages of the illness she will reside in the hospice and may, in the discretion of a consultant, be sedated. That is all we know. I will return to this point at the end of this judgment.

    51. On the hearing of the appeal the House heard oral submissions on behalf of Mrs Pretty, the DPP and the Home Secretary and received written submissions from a Roman Catholic Archbishop as well as the Medical Ethics Alliance, the Society for the Protection of Unborn Children and Alert. I wish to pay tribute to the quality of the arguments placed before the House.

III. The framework of the case.

    52. It is necessary to explain two preliminary matters. First, terminally ill patients may sometimes be incompetent to take decisions. This is not such a case. Mrs Pretty is fully competent to take decisions about her personal autonomy and in particular about the question whether she wants to commit suicide and when and how. Secondly, there is a distinction between voluntary euthanasia and assisted suicide. Glanville Williams (The Textbook of Criminal Law, 2nd ed. (1983), at p 580) illustrates the difference. If a doctor, to speed the dying of his patient, injects poison with the patient's consent, this is voluntary euthanasia and murder. If the doctor places poison by the patient's side, and the patient takes it this will be assisted suicide and amount to the commission of the offence under section 2(1) of the 1961 Act. The arguments before the House are concerned with cases falling in the latter category. But to some extent the arguments about the two concepts are intertwined.

IV. The scheme of this judgment.

    53. Reversing the order of considering the issues adopted by the Divisional Court, I will first examine whether Mrs Pretty has a right to die with the assistance of her husband (or anybody else) enforceable against the state under the European Convention. In other words, I will consider whether any of the articles of the European Convention relied on require the state to render lawful assisted suicide by a person in Mrs Pretty's position. It will, however, be necessary to sketch the contextual scene before I consider the specific articles. Thereafter, I will briefly consider the position of the DPP in regard to requests for undertakings not to prosecute made in advance of the commission of the criminal act.

    54. The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast: see for a sample of the range of views: Glanville Williams, The Sanctity of Life and the Criminal Law, 1958, chap 8. Ronald Dworkin, Life's Dominion: An Argument About Abortion and Euthanasia, 1993, chap 7; Euthanasia Examined: Ethical clinical and legal perspectives, Essays edited by John Keown, 1995; Otlowski, Voluntary Euthanasia and the Common Law, 1997, chap 5-8; Mary Warnock, An Intelligent Person's Guide to Ethics, 1998, chap 1. It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do.

    55. Given the fact that Mrs Pretty's arguments are founded on the European Convention, the existing position under English law, even if in large measure very similar to that under other European legal systems, cannot be decisive. But it demonstrates how controversial the subject of the legalisation of euthanasia and assisted suicide is in Europe. In outline the position in England is as follows. By virtue of legislation suicide is no longer an offence and a suicide pact may result in a verdict of manslaughter. Mercy killing in the form of euthanasia is murder and assisted suicide is a statutory offence punishable by 14 years' imprisonment. A competent patient cannot be compelled to undergo life saving treatment: St George's Health Care Trust v S [1999] Fam 26. Under the double effect principle medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death: Airedale NHS Trust v Bland [1993] AC 789, 867D, per Lord Goff of Chieveley. This principle entails a distinction between foreseeing an outcome and intending it: see also Anthony Arlidge, The trial of Dr David Moor, [2000] Crim LR 31. The case of Bland involved a further step: the House of Lords held that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die: see also NHS Trust A v H [2001] 2 FLR 501. These are at present the only inroads on the sanctity of life principle in English law. In this corner of the law England is not an island on its own. It is true that since the Alkmaar decision of the Supreme Court on 27 November 1984 the Dutch courts, relying on the principle of "noodtoestand" (necessity), relaxed the prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor's respect for life and his duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical opinion. It is important to note that this line of decisions is not based on the European Convention. See also Otlowski, Voluntary Euthanasia and the Common Law, (1997), 391-450. Earlier this year the Parliament of the Netherlands has enacted a statute, viz the Termination of Life for Request and Assisted Suicide (Review Procedures) Act 2001, which formalises a relaxation of the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical supervision. It is to be noted, however, that the UN Human Rights Committee in a report dated 27 August 2001 expressed serious concerns about the operation of the system: CCPR/CO/72/NET, para 5: see also a review of other concerns in John Keown, Euthanasia Examined, 1995, chap 16. The other member states of the Council of Europe have not legalised euthanasia or assisted suicide: compare, however, the position in Switzerland: see "Assisted Dying and the laws of three European countries" by Lesley Vickers (1997) 147 NLJ 610. Furthermore, the Parliamentary Assembly of the Council of Europe (the sponsoring body for the Convention) has adopted Recommendation 1418 (1999). In paragraph 9(c), it recommended that the Committee of Ministers should encourage the member states of the Council to respect and protect the dignity of terminally ill or dying persons in all respects, by (among other things) "upholding the prohibition against intentionally taking the life of terminally ill or dying persons", while:

"(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hands 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."

Paragraph 9(c)(iii) plainly covers assisted suicide. This recommendation is testimony of prevailing public opinion in member states. Given the fact that Mrs Pretty's case is based on the European Convention I have concentrated on European developments. It is, however, noteworthy that in the United States and Canada arguments similar to that of Mrs Pretty ultimately failed: Vacco v Quill (1997) 521 US 793; Washington v Glucksberg (1997) 521 US 702; Rodriquez v Attorney-General of Canada [1994] 2 LRC 136.

The reach of human right's texts.

    56. The human rights movement evolved to protect fundamental rights of individuals either universally or regionally. The theme of the Declaration of 1948 was universal. It involved a common conception of human rights capable of commanding wide acceptance throughout the world despite huge differences between countries in culture, in religion, and in political systems: Johnson and Symonides, The Universal Declaration of Human Rights: A History of its Creation and Implementation: 1948-1998, Unesco, 1998, at p 39; Glendon, A World Made New, 2001, at p 176. Any proposal that the Universal Declaration should require states to guarantee a right to euthanasia or assisted suicide (as opposed to permitting states by democratic institutions so to provide) would have been doomed to failure. The aspirational text of the Universal Declaration was the point of departure and inspiration of the European Convention which opened for signature in 1950. It is to be noted, however, that the European Convention embodied in some respects a narrower view of human rights than the Universal Declaration. The framers of the European Convention required a shorter and uncontroversial text which would secure general acceptance among European nations. Thus the European Convention contains, unlike the Universal Declaration, no guarantees of economic, social and cultural rights. A further illustration relates to the guarantees of equality in the two texts. The guarantee in the Universal Declaration is free standing and comprehensive: see article 7. In the European Convention the provision is parasitic: it is linked with other Convention rights: article 14. The language of the European Convention is often open textured. In 1950 The Lord Chancellor observed:

"Vague and indefinite terms have been used just because they were vague and indefinite, so that all parties, hoping and expecting that these terms will be construed according to their separate points of view, could be induced to sign them." (Cabinet Office memorandum CAB 130/64)

Sir Hartley Shawcross, QC, the Attorney General, attributed the lack of clarity in the drafting to a compromise to accommodate the different legal systems involved: see Geoffrey Marston, "The United Kingdom's Part in the Preparation of the European Convention on Human Rights, 1950", (1993) 42 ICLQ 796, 818 and 819. The generality of the language permits adaptation of the European Convention to modern conditions. It is also, however, necessary to take into account that in the field of fundamental beliefs the European Court of Human Rights does not readily adopt a creative role contrary to a European consensus, or virtual consensus. The fact is that among the 41 member states, - North, South, East and West - there are deep cultural and religious differences in regard to euthanasia and assisted suicide. The legalisation of euthanasia and assisted suicide as adopted in the Netherlands would be unacceptable to predominantly Roman Catholic countries in Europe. The idea that the European Convention requires states to render lawful euthanasia and assisted suicide (as opposed to allowing democratically elected legislatures to adopt measures to that effect) must therefore be approached with scepticism. That does not involve support for the proposition that one must go back to the original intent of the European Convention. On the contrary, approaching the European Convention as a living instrument, the fact is that an interpretation requiring states to legalise euthanasia and assisted suicide would not only be enormously controversial but profoundly unacceptable to the peoples of many member states.

    57. If section 2 of the 1961 Act is held to be incompatible with the European Convention, a right to commit assisted suicide would not be doctor assisted and would not be subject to safeguards introduced in the Netherlands. In a valuable essay Professor Michael Freeman trenchantly observed "A repeal of section 2 of the Suicide Act 1961, without more, would not be rational policy-making. We would need a 'Death with Dignity' Act to fill the lacuna": "Death, Dying and the Human Rights Act 1998" (1999), 52 CLP 218, at 237. That must be right. In our parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result with all the necessary in-built protections. Essentially, it must be a matter for democratic debate and decision making by legislatures.

VI. The Specific Articles.