R (Pretty) v DPP

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL, LORD STEYN, LORD HOPE OF CRAIGHEAD, LORD HOBHOUSE OF WOODBOROUGH, LORD SCOTT OF FOSCOTE, LORD BINGHAM OF CORNHILL
Judgment Date29 Nov 2001
Neutral Citation[2002] UKHRR 97, [2001] UKHL 61

[2001] UKHL 61

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Hobhouse of Wood-borough

Lord Scott of Foscote

The Queen on the Application of Mrs Dianne Pretty
(Appellant)
and
Director of Public Prosecutions
(Respondent)
and
Secretary of State for the Home Department
(Interested Party)
LORD BINGHAM OF CORNHILL

My Lords,

1

No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed.

2

In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be.

Article 2 of the convention

3

Article 2 of the convention provides:

"Right to life

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

  • (a) in defence of any person from unlawful violence;

  • (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

  • (c) in action lawfully taken for the purpose of quelling a riot or insurrection."

The article is to be read in conjunction with articles 1 and 2 of the Sixth Protocol, which are among the convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace.

4

On behalf of Mrs Pretty it is submitted that article 2 protects not life itself but the right to life. The purpose of the article is to protect individuals from third parties (the state and public authorities). But the article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The article acknowledges that right of the individual. While most people want to live, some want to die, and the article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the state has a positive obligation to protect both.

5

The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as "voluntary euthanasia", but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the state would be in breach of the convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an article having the object already defined.

6

It is true that some of the guaranteed convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association ( Young, James and Webster v United Kingdom (1981) 4 EHRR 38), article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p 974, para 14.49) and I would for my part be inclined to infer that article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid, p 913, para 13.76). It cannot however be suggested (to take some obvious examples) that articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an article framed to protect the sanctity of life.

7

There is no convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p 305 the court said:

"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due...

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