Kenward v Director of Public Prosecutions

JurisdictionEngland & Wales
JudgeLord Justice Longmore,Lord Justice Kitchin
Judgment Date17 January 2017
Neutral Citation[2017] EWCA Civ 122
CourtCourt of Appeal (Civil Division)
Date17 January 2017
Docket NumberC1/2015/4341

[2017] EWCA Civ 122

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT LIST

(LEVESON P)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Longmore

Lord Justice Kitchin

C1/2015/4341

Kenward
Claimant/Applicant
and
Director of Public Prosecutions
Defendant/Respondent

Mr P Diamond (instructed by Andrew Ritson Solicitors) appeared on behalf of the Applicant

Lord Justice Longmore
1

The crime of assisted suicide continues to generate controversy. Not every case of assisted suicide is prosecuted because the Director of Public Prosecutions is required to consent to any prosecution and applies her normal criteria for the institution of any prosecution, namely that there must be sufficient evidence to justify a prosecution with a reasonable prospect of success and that a prosecution is required as a matter of the public interest.

2

In the case of R (on the application of Pretty) v DPP [2002] 1 AC 800, the House of Lords held that Mrs Pretty's human rights were not engaged by the provisions of section 2 of The Suicide Act 1961, which enacted the crime of assisted suicide. They accordingly dismissed her application for a guarantee of immunity from the DPP in the event that her husband assisted her to commit suicide if and when she determined that the disease from which she suffered became intolerable.

3

The European Court of Human Rights held, on Mrs Pretty's further application, that her Article 8 rights to a private life were engaged but that the interference with that right was justified under Article 8(2). Their decision is reported in [2002] 35 EHRR 1.

4

In the light of that decision Mrs Purdy, who suffered from multiple sclerosis, adopted a different approach on behalf of her husband and sought information from the DPP as to his likely attitude to a prosecution of her husband. When he declined to state what his attitude would be Mrs Purdy sought a declaration that her Article 8 rights were infringed because she was entitled to expect the law to be accessible and foreseeable, which in the light of any of the absence of any guidance from the DPP as to how he would interpret the public interest aspect of his discretion it was not.

5

The House of Lords agreed and required the DPP to promulgate a policy identifying the facts and circumstances which he would take into account in deciding whether or not to consent to a prosecution in a case of assisted suicide.

6

The result of R (on the application of a Purdy) v DPP [2010] 1 AC 345 was the promulgation of just such a policy. Not surprisingly perhaps it has generated much controversy. In a country such as England, in which Parliament, not the DPP, makes the law, it is not easy to see how such controversy can be adequately addressed by the courts.

7

Paragraph 43(14) of the policy provided that a prosecution is more likely to be required if:

"The suspect is 'acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care."

That did not satisfy the litigants in the case of R (on the application of Nicklinson) v Ministry of Justice and R (on the application AM) v DPP [2015] AC 657.

8

Mr AM in particular, said that the policy in relation to doctors, nurses and other health care professionals was still unclear, since there was or should be a distinction between long-term health care professionals, on the one hand, who might be thought be in a position to influence a potential patient in their care and, on the other hand, health care professionals who were brought in once a determination of suicide had been carefully, properly and finally made.

9

By a majority this court said that the policy was indeed unclear in that respect and they declared that the DPP had infringed the rights of AM who had pursued this point. Lord Judge LCJ...

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