R (Purdy) v DPP

JurisdictionUK Non-devolved
JudgeLORD HOPE OF CRAIGHEAD,LORD NEUBERGER OF ABBOTSBURY,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD PHILLIPS OF WORTH MATRAVERS
Judgment Date30 July 2009
Neutral Citation[2009] UKHL 45
CourtHouse of Lords
Date30 July 2009

[2009] UKHL 45

HOUSE OF LORDS

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

R (on the application of Purdy)
(Appellant)
and
Director of Public Prosecutions
(Respondent)

Appellants:

Lord Pannick QC

Paul Bowen

(Instructed by Bindmans LLP)

Interveners (Society for the Protection of Unborn Children)

Charles Foster

Benjamin Bradley

(Instructed by Penningtons)

Respondent:

David Perry QC

Dinah Rose QC

Jeremy Johnson

(Instructed by Teeasury Solicitors)

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

1

I have had the advantage of reading in draft the opinions of each of the members of the Committee. I agree for the reasons that are common to all of them that this appeal should be allowed and that the Respondent should be required to promulgate a policy with the features described in the final paragraph of the draft opinion of my noble and learned friend, Lord Hope of Craighead. That opinion also addresses the question of whether acts in this jurisdiction that assist a person to travel to Switzerland for the purpose of there committing suicide fall within the scope of section 2(1) of the Suicide Act 1961 ("the 1961 Act"). Lord Hope approaches that question on the premise that section 2(1) created a new offence that was sui generis and applies to it recent jurisprudence in relation to territorial jurisdiction over criminal offences. On the basis of this and for additional reasons that reflect a purposive approach to the subsection, he gives an affirmative answer to that question.

2

It is, as Lord Hope observes, enough for the purposes of this appeal that the answer to the question should be in doubt. No argument has been placed before the House to challenge Lord Hope's conclusion. I consider it better that the question should not be resolved unless and until it falls for determination in the context of a prosecution. I say this because I do not approach the question in the same way as Lord Hope and have reached some provisional conclusions that do not reflect any of the submissions that have been placed before the House.

3

Before the 1961 Act it was unquestionably a criminal offence to aid, abet, counsel or procure ("assist") the commission of suicide where both the relevant conduct and the act of suicide occurred within England and Wales. Whether it was an offence when the conduct or the suicide occurred outside the jurisdiction is a question that I am about to consider. In my view there is a strong presumption that the offence created by section 2(1) of the 1961 Act was intended to ensure that, in those circumstances where committing suicide and the attempt to do so were decriminalised by section 1, assisting suicide remained a criminal offence. It seems unlikely that Parliament intended, in an Act whose primary purpose was to decriminalise suicide and attempted suicide, to widen the scope of the offence of assisting suicide.

4

The 12th Edition (2008) of Smith and Hogan on Criminal Law comments at 16.2.2.1 in relation to section 2(1) of the 1961 Act that "The words 'aids, abets, counsels or procures' are those used to define secondary participation in crime but here they are used to define the principal offence. The interpretation of the words should be the same". I agree.

5

What was the position before 1961? I will go back a further century to the position before legislation of some relevance to which I shall refer in 1861. Suicide was a felony, being regarded as self-murder ("felonia de se"). For this reason the property of a person who committed suicide was forfeited. Attempted suicide was, as was an attempt to commit any other felony, a misdemeanour. A person who was present at the suicide of another and who assisted or encouraged the suicide, was guilty of murder as a principal in the second degree, and this applied equally where that person was the survivor of a suicide pact - Rex v Dyson (1823) Russ. & Ry 523; R v Croft [1944] KB 295.

6

A person who encouraged or assisted another to commit suicide but who was not present when the suicide was committed was, in theory, an accessory before the fact to the suicide. Such a person could not, however, be prosecuted under the common law because of the rule that an accessory before the fact to a felony could only be prosecuted once the principal offender had been prosecuted to conviction - R v Russell (1832) 1 Mood 356; R v Croft.

7

Section 1 of the Accessories and Abettors Act 1861 provided:

"Whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted and punished in all respects as if he were a principal felon".

Thereafter an accessory before the fact to suicide could be tried for murder - R v Croft.

8

Section 4(1) of the Homicide Act 1957 provided that

"It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person."

Subject to this, assisting suicide, whether as a principal in the second degree or as an accessory before the fact, remained murder.

9

As a general rule English criminal law does not extend to acts committed outside the jurisdiction: Cox v Army Council [1963] AC 48 at p. 67; Treacy v DPP [1971] AC 537 at pp. 552-553. From at least the time of Henry VIII, however, murder has been recognised as an exception to this general rule. Section 9 of the Offences against the Person Act 1861 provides:

"Where any Murder or Manslaughter shall be committed on Land out of the United Kingdom, whether within the Queen's Dominions or without, and whether the Person killed were a Subject of Her Majesty or not, every Offence committed by any Subject of Her Majesty, in respect of any such Case, whether the same shall amount to the Offence of Murder or of Manslaughter, or of being accessory to Murder or Manslaughter, may be dealt with, inquired of, tried, determined, and punished in any County or Place in England or Ireland in which such Person shall be apprehended or be in Custody, in the same Manner in all respects as if such Offence had been actually committed in that County or Place;"

10

It would appear to follow that, prior to the 1961 Act, a person who assisted another to commit suicide abroad, whether the assistance took place within this jurisdiction or outside it, was guilty of murder and could be tried for that offence in England.

11

The 1961 Act provides by section 3(3) "This Act shall extend to England and Wales only". The ambit of section 2(1) should logically, in my view, be the same as the ambit of section 1. Plainly suicide ceases to be an offence when committed in England and Wales. It follows that assisting suicide, when the act of assisting and the act of suicide take place within England and Wales, is an offence under section 2(1).

12

It is equally plain that section 1 does not apply to suicide committed outside England and Wales. If that falls to be treated as murder, so that assisting it is also murder, it would seem to follow that if a British subject accompanies a relative, who is also a British subject, to Switzerland and assists in Switzerland the relative to commit suicide with help from Dignitas, that person will under English law commit the crime of murder and will be subject to the jurisdiction of the courts of England and Wales in relation to that offence.

13

It must be a moot point whether, in respect of acts of assistance that take place in this jurisdiction in relation to suicide that takes place in Switzerland, section 2(1) applies so as to reduce the offence from murder to one under section 2(1). Logically it seems to me that it should not, but plainly considerations of legislative policy would weigh the other way.

14

Is there any escape from these conclusions, which may not have been appreciated by those who drafted the 1961 Act? A possible avenue would be a finding that, for the purposes of section 9 of the Offences against the Person Act 1861, suicide is not to be treated as murder, so that assisting suicide abroad is not to be treated as murder falling within section 9. So far as I have been able to ascertain there has never been a prosecution for assisting a suicide that has taken place outside the jurisdiction. Support for excluding suicide from the ambit of section 9 of the 1861 Act might be gained from a decision, soon after the Act came into force, in relation to the meaning of murder where that word appeared in section 15 of the same Act. Sections 11, 12, 13 and 14 of the Act provided that a number of different methods of attempting to commit murder were to be felonies. Section 15 provided:

"Whosoever shall, by any Means other than those specified in any of the preceding Sections of this Act, attempt to commit Murder, shall be guilty of Felony."

15

In R v Burgess (1862) Le. & Ca. 257 one of the Crown Cases Reserved raised the question of whether section 15 applied in the case of a woman who had tried to commit suicide, with the effect that her offence was a felony, rather than a misdemeanour that fell within the jurisdiction of the Quarter Sessions. Pollock CB, giving the judgment of the court, held at p. 262:

"We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death."

...

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