R (Purdy) v DPP
| Jurisdiction | England & Wales |
| Judgment Date | 19 February 2009 |
| Neutral Citation | [2009] EWCA Civ 92 |
| Docket Number | Case No: C1/2008/2626 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 2009 |
[2009] EWCA Civ 92
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LORD JUSTICE SCOTT BAKER AND MR JUSTICE AIKENS
CO/3449/2008
Lord Chief Justice of England and Wales
The Rt Hon. Lord Justice Ward and
The Rt Hon. Lord Justice Lloyd
Case No: C1/2008/2626
Lord Pannick QC and Mr Paul Bowen (instructed by Bindmans LLP) for the appellant
Miss Dinah Rose QC and Mr Jeremy Johnson (instructed by The Treasury Solicitor) for the respondent
Mr Charles Foster and Mr Ben Bradley (instructed by Penningtons) for the intervener
Hearing date: 3 rd February 2009
Lord Judge CJ:
This is the judgment of the Court to which we have all contributed.
Introduction
This is a case about assisted suicide. Assisted suicide is a crime. That is clear and unchallenged in this case. The reason is simple. Section 1 of the Suicide Act 1961 (“the Act”) abrogated the rule of law that suicide is a crime. However section 2(1) of the Act continues to impose criminal liability for complicity in another's suicide by providing that:
“(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.”
In short, the law which governs this case was made by Parliament. It is clear and unequivocal. We cannot subject it to judicial interpretation and produce a meaning which the statute does not bear. The statute does not admit of exceptions. We cannot suspend or dispense with the law. That would contradict an elementary constitutional principle, the Bill of Rights itself. Parliament alone has the authority to amend this law and identify the circumstances, if any, in which the conduct of the individual who assists or attempts to assist another to commit suicide should be de-criminalized.
This case revolves around section 2(4) of the Act which provides
“(4) … no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
The real question which arises is this: can the Director of Public Prosecutions (“the DPP”) be required to promulgate an offence-specific policy identifying the facts and circumstances he will take into account when deciding whether, on the assumption that there is sufficient evidence to prosecute a defendant under section 2(1), it will not be deemed in the public interest to do so? The question arises because the appellant, Ms Purdy, who suffers a debilitating illness, has declared her wish to travel abroad to take her own life. For the purposes of the forensic argument her claim is based on her wish to know whether or not her husband, Mr Puente, will be prosecuted if, in these circumstances, he aids and abets her suicide: in reality she wants to know that he will not.
Ms Purdy's predicament
The essential facts are distressingly stark. Ms Debbie Purdy is forty-five. She was diagnosed in 1995 to be suffering with progressive multiple sclerosis (“MS”). It is a chronic disease of the central nervous system. The person with MS can suffer almost any neurological symptom or sign, including changes in sensation, muscle weakness, muscle spasms, or difficulty in moving; difficulties with co-ordination and balance; problems in speech or swallowing; visual problems; fatigue; acute or chronic pain and bladder and bowel difficulties. Cognitive impairment of varying degrees and emotional symptoms of depression or unstable mood are also common. There is no known cure for MS.
Ms Purdy graphically describes the effects of her illness:
“3. By 2001, I was permanently using a wheelchair and finding everyday tasks like showering or cooking more difficult, and often impossible, without help.
4. More recently in 2006 my arms became weaker and self-propelling my wheelchair became more difficult. Brushing my teeth was becoming impossible. I bought an electric toothbrush, but even that is difficult. I take painkillers everyday and that manages the pain in my swollen feet. I find it difficult to hold my body still and flop around. I have regular physiotherapy to try and use the right muscles and reduce painful spasms. I experience dry mouth from time to time. I experience choking fits. I am beginning to lose the ability to do many things for myself.
5. Throughout 2007 my condition has deteriorated further. For example I cannot cut things up. I drop things a lot. I am more prone to choking fits when I drink. I now need to use an electric wheelchair …”
The increasing deterioration of her health now presents her with this terrible predicament:
“7. My wish is to be able to ask for and receive assistance to end my life, should living it become unbearable for me. I wish to be able to make the decision to end my life while I am physically able to do so. I consider that this will probably mean either traveling to Zurich, Switzerland to avail myself of the services of Dignitas (as I do not wish to mess up any attempts, thereby making matters worse for myself), or to go to Belgium and avail myself of the Belgian Act on Euthanasia of 28th May 2002 as Belgium is relatively easy for me to travel to.
8. My husband has said he would assist me and if necessary face a prison sentence, but I am not prepared to put him in this position for a number of reasons. I love him and do not want him to risk ending up in prison … I also do not want him to suffer more than necessary.
9. I want to avoid the situation where I am too unwell to terminate my life. I want to retain as much autonomy as possible. I want to make a choice about when the quality of my life is no longer adequate and to die a dignified death. This decision is of my own making. Nobody has suggested this to me or pressured me to reach this view. It is a decision I have come to of my own free will.”
In short, Ms Purdy's condition has continued to deteriorate. The progress of her illness cannot be halted. She knows that eventually she will wish to bring her suffering to an end by committing suicide. However, she wishes to live for as long as possible, and to end her life only when it becomes utterly unbearable. But the harsh reality is if she lives that long she will be unable to end her own life without assistance. By then, it will be beyond her capability to do so.
The appeal has proceeded on the basis that Mr Puente is willing to care lovingly for her, for however long it may take, until she has decided for herself that her life has become impossible. Then, as a final act of devotion he would be willing to assist her to achieve her objective by taking her abroad, somewhere where individuals suffering from “hopeless or incurable illness, unbearable pain or unendurable disabilities” may end their lives with dignity.
This couple knows that no matter how desperate or determined to take her own life Ms Purdy may be, no matter how clear and balanced her state of mind, and no matter how motivated by raw compassion and devoted love Mr Puente would be, the law which prohibits assisted suicide does not permit of exceptions.
They are confronted with an impossible dilemma. We suspect that although Mr Puente would be willing to pay whatever penalty the law may require, for Ms Purdy it would be a price too high. She is desperate to avoid the risk that he may be prosecuted, so much so, that she would prefer to end her life while she is still able to do so without his assistance. If Ms Purdy could achieve something practicable within the current legal structures to ensure that her husband would not be prosecuted after her death, then she will not need to bring her life to an end before she would otherwise be ready.
While recognising the call for compassion and understanding in this particular case, it is worth remembering that the provisions of section 2(1) of the Act are not confined to cases in which it might not be unreasonable to hope for a merciful outcome. Reflecting on section 2(1), in an appeal against sentence, Lord Lane CJ observed:
“It is clear … that Parliament had in mind the potential scope for disaster and malpractice in circumstances where elderly, infirm and easily suggestible people are sometimes minded to wish themselves dead. It is a crime, whether you pigeon-hole it under attempted murder or assisting a suicide. In terms of gravity it can vary from the borders of cold-blooded murder down to the shadowy area of mercy killing or common humanity …” ( R v Hough (1984) CAR (S) 406.)
Cases of assisted suicide, like all other criminal offences, vary hugely in their criminality. The context, usually, or at any rate frequently, is that the suicide will have been successful. It is the assistant who has survived. The mitigating features may indeed vary hugely, and in some, regrettably, there are none or virtually none. Not all cases are as sensitive as this one, and not all cases of assisted suicide represent the final act or acts of love or the culmination of a lifelong loving relationship.
A similar problem to that faced by Ms Purdy confronted Mrs Dianne Pretty. She suffered from motor neurone disease, a progressive degenerative illness from which she had no hope of recovery. She faced the imminent prospect of a distressing and humiliating death. She was, however, mentally alert and wished to control the time and...
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