R (Pretty) v DPP

Diane Pretty was a forty-three-year-old woman suffering from motor neurone disease, a progressive and fatal degenerative condition affecting the motor cells of the brain and spinal cord. By the time her case reached the House of Lords in 2001, she was paralysed from the neck down, confined to a wheelchair, and her condition was rapidly deteriorating. Her intellect and capacity to make decisions remained entirely unimpaired. She faced the prospect of a distressing death caused by the gradual failure of her respiratory muscles, a process she found deeply objectionable and feared greatly.

Mrs Pretty wished to be assisted to die at a time and in a manner of her own choosing, before the terminal stages of her illness rendered her life intolerable to her. Because of her physical incapacity, she was unable to end her own life without assistance. She therefore sought from the Director of Public Prosecutions (DPP) an undertaking that her husband, Brian Pretty, would not be prosecuted under section 2(1) of the Suicide Act 1961 if he assisted her to commit suicide. Section 2(1) makes it a criminal offence, carrying a maximum sentence of fourteen years' imprisonment, to aid, abet, counsel or procure the suicide of another.

The DPP refused to give the undertaking sought, holding that he had no power to grant immunity in advance from prosecution for conduct that would constitute a criminal offence. Mrs Pretty applied for judicial review of that refusal, contending that the DPP was under a duty to give the undertaking and that, in any event, section 2(1) of the Suicide Act 1961 was incompatible with her Convention rights as incorporated by the Human Rights Act 1998.

The Divisional Court dismissed her application, and she appealed to the House of Lords. Her case engaged, directly and acutely, some of the most profound questions in public law and human rights law: the nature of personal autonomy, the limits of state intervention in intimate decisions about life and death, and the extent to which Convention rights protect the right to choose how and when one dies.

The case was heard with exceptional urgency given Mrs Pretty's deteriorating condition. It attracted widespread public and legal attention as the first occasion on which the House of Lords examined, in a human rights context, whether English law could constitutionally criminalise assistance in suicide in circumstances where the person seeking to die had full mental capacity and a genuine, settled, and rational wish to end her suffering.

The primary issue was whether the DPP had the power, or was under a duty, to give an advance undertaking that he would not consent to the prosecution of Mr Pretty under section 2(1) of the Suicide Act 1961 in respect of assistance he might give his wife to commit suicide. This required the House to consider the nature and scope of the DPP's prosecutorial discretion under section 2(4) of the 1961 Act, which provides that no proceedings for an offence under section 2 may be instituted except by or with the consent of the DPP.

The second and more far-reaching issue was whether section 2(1) of the Suicide Act 1961 was incompatible with one or more rights guaranteed by the European Convention on Human Rights as incorporated by the Human Rights Act 1998. Mrs Pretty invoked Article 2 (the right to life), Article 3 (the prohibition of inhuman or degrading treatment), Article 8 (the right to respect for private life), Article 9 (freedom of thought, conscience and religion), and Article 14 (the prohibition of discrimination). Each of these Articles was argued to bear upon the lawfulness of a regime that permitted a person to take their own life but criminalised any assistance in doing so.

Underlying both questions was the broader constitutional issue of how courts should approach an individual's claim that the state is obliged, as a matter of human rights law, to permit or facilitate a choice which the legislature has expressly prohibited in the public interest. The case therefore engaged questions of judicial deference to Parliament, the proper construction of broad Convention rights, and the margin of appreciation available to member states in matters of profound moral sensitivity.

Their Lordships, in a unanimous decision delivered by a committee of five, dismissed the appeal on all grounds. The leading speech was delivered by Lord Bingham of Cornhill, with concurring speeches from Lords Steyn, Hope, Hobhouse, and Scott, each addressing particular aspects of the Convention arguments in varying degrees of detail.

On the question of the DPP's power to give an advance undertaking, the House held that the DPP has no power to grant immunity from prosecution in advance of conduct that would constitute a criminal offence. Section 2(4) of the Suicide Act 1961 requires the DPP's consent before proceedings may be instituted, but that provision governs the institution of proceedings after the alleged offence has been committed. It does not confer upon the DPP any authority to give advance undertakings that particular conduct will not be prosecuted. Such a power would be constitutionally anomalous and inconsistent with the principle of legality: it would in effect allow the executive to suspend or dispense with the application of a statutory criminal provision, contrary to the Bill of Rights 1689.

Turning to Article 2 of the Convention, Mrs Pretty's counsel argued that the right to life necessarily implies a right to choose death, and that Article 2 protects not merely life but the individual's right of self-determination in relation to life. Their Lordships rejected this argument emphatically. Article 2 imposes a positive obligation on states to protect life and a negative obligation to refrain from taking life. It does not confer on individuals a right to die, still less a right to obtain assistance in dying. To read Article 2 as conferring a right to death would be to stand the Article on its head: its entire purpose is the protection and preservation of life, not its termination.

The argument under Article 3 was, in some respects, the most powerful advanced on Mrs Pretty's behalf. It was contended that by refusing to give the undertaking sought, the state was subjecting her to inhuman or degrading treatment within the meaning of Article 3, because she would be compelled to endure a death that she regarded as undignified and distressing. The House acknowledged the profound sympathy owed to Mrs Pretty's situation but held that Article 3 is directed at treatment inflicted by state authorities. The suffering that Mrs Pretty faced arose not from any act or omission of the state but from her terminal illness. The state was not inflicting any treatment upon her: it was simply declining to exempt her husband from the general operation of the criminal law. To hold otherwise would fundamentally distort the nature of the Article 3 obligation.

Article 8, which protects the right to respect for private and family life, received more careful and nuanced treatment. Their Lordships accepted that the concept of private life under Article 8 is broad and that it encompasses aspects of personal identity and autonomy, including decisions about what one does with one's own body. It was at least arguable, the House accepted, that Article 8(1) is engaged by legislation that criminalises conduct affecting only the individual concerned. However, even accepting that Article 8(1) was engaged, the prohibition on assisted suicide constituted an interference with that right that was plainly justified under Article 8(2) as being necessary in a democratic society for the protection of the rights of others, in particular the protection of vulnerable persons who might feel themselves a burden and who might be susceptible to pressure, whether explicit or subtle, to end their lives prematurely.

On this point, Lord Bingham and the other members of the committee emphasised the importance of the margin of appreciation available to member states in areas of profound moral and ethical controversy. The question of where to draw the line on assisted dying is one upon which reasonable people deeply disagree, and which involves the most sensitive and contested moral, religious, and social judgments. Parliament, as the democratically elected legislature, is better placed than courts to assess the evidence, weigh the competing considerations, and determine where the public interest lies. The general prohibition in section 2(1) of the 1961 Act reflects a judgment made by Parliament that the risks of permitting assisted suicide, particularly to vulnerable individuals, outweigh the benefits. That judgment falls within the range of choices that a state may legitimately make under Article 8(2), and courts should not substitute their own assessment.

The argument under Article 9, concerning freedom of thought, conscience and religion, was given short shrift. Article 9 protects the right to hold beliefs and, to a more limited extent, to manifest them. It does not protect every act motivated by or expressing a belief. Mrs Pretty's wish to die, however sincerely and conscientiously held, did not attract the protection of Article 9 because giving effect to that wish required the commission of a criminal act. The freedom of conscience protected by Article 9 does not confer a right to have the criminal law disapplied in order to permit the expression of a conscientious choice.

The Article 14 argument contended that section 2(1) discriminated against Mrs Pretty on grounds of physical disability. The argument ran as follows: persons who are physically able to end their own lives are free to do so, since suicide itself is no longer a criminal offence under the 1961 Act, but Mrs Pretty, because of her physical incapacity, is unable to avail herself of that freedom without assistance. The prohibition on assistance therefore discriminates against physically disabled persons in the enjoyment of their Convention rights. The House rejected this argument. Article 14 only applies to discrimination in the enjoyment of rights guaranteed by the Convention. Since none of the other Convention rights relied upon were established to be engaged in a manner that benefited Mrs Pretty, Article 14 had nothing upon which to bite. In any event, the general prohibition on assisted suicide applies equally to all: it is not directed at disabled persons, and any differential impact arises from Mrs Pretty's illness rather than from the operation of the law.

Throughout their reasoning, their Lordships drew attention to the position of the European Court of Human Rights and to the Convention jurisprudence available at the time. The House was unanimous that, even had there been a colorable Convention right in play, the Strasbourg court would not have found a violation on the facts: the Court has consistently afforded member states a wide margin of appreciation in sensitive ethical and moral matters, and had not previously suggested that the Convention requires states to permit assisted suicide. The House's assessment proved accurate when Mrs Pretty subsequently took her case to Strasbourg in Pretty v United Kingdom (2002) 35 EHRR 1, where the European Court of Human Rights reached the same conclusions, albeit with somewhat more elaborate reasoning on the Article 8 point.

The House also addressed the relationship between the Human Rights Act 1998 and parliamentary sovereignty. Their Lordships were clear that the court's function under section 4 of the 1998 Act is to declare legislation incompatible with Convention rights where no compatible interpretation is possible under section 3, but not to disapply primary legislation. Even had the court found a Convention incompatibility, the appropriate remedy would have been a declaration of incompatibility, leaving it to Parliament to decide whether and how to amend the law. In the event, no incompatibility was found, and the question of a declaration did not arise.

The House of Lords unanimously dismissed Mrs Pretty's appeal. The DPP has no power to give advance undertakings that a person will not be prosecuted for conduct constituting a criminal offence, and had no duty to give such an undertaking on the facts. The refusal by the DPP to give the undertaking sought was therefore lawful.

Section 2(1) of the Suicide Act 1961 is not incompatible with any of the Convention rights invoked by Mrs Pretty. Article 2 does not confer a right to die. Article 3 is not engaged by the operation of a general criminal law provision that causes no state-inflicted suffering. Article 8, even if engaged, is subject to a justified interference under Article 8(2) by reference to the protection of vulnerable persons. Articles 9 and 14 do not assist Mrs Pretty on the facts. Accordingly, no declaration of incompatibility was appropriate.

The decision confirmed that the general prohibition on assisted suicide in English law, as enacted in section 2(1) of the Suicide Act 1961, is compatible with the European Convention on Human Rights and with the Human Rights Act 1998. Any reform of the law in this area is a matter for Parliament rather than the courts.

R (Pretty) v DPP [2001] UKHL 61 is a landmark decision in both public law and human rights law. It represents the first sustained judicial examination, at the highest level, of whether the Convention can be deployed to require the state to permit or facilitate assisted suicide. The judgment establishes authoritatively that English law's prohibition on assisted suicide is Convention-compatible, a conclusion that has remained the foundation of subsequent jurisprudence in this area. The case is significant for its careful analysis of the structure and limits of each of the Convention Articles engaged and for the way in which it identifies the limits of judicial intervention in matters of profound moral controversy reserved for legislative judgment.

The Strasbourg Court's decision in Pretty v United Kingdom (2002) 35 EHRR 1, confirming the House of Lords' conclusions in all essential respects while developing the reasoning on Article 8 somewhat further, reinforced the authority of the domestic decision and placed the compatibility of the English prohibition on assisted suicide beyond serious doubt as a matter of international human rights law at that time. In particular, the European Court accepted that Article 8(1) is engaged by legislation touching on intimate decisions about how one dies, but held that the interference is justified under Article 8(2).