Purdy, R (on the application of) v Director of Public Prosecutions

Facts

Debbie Purdy suffered from primary progressive multiple sclerosis. She wished to be able to travel to a country where assisted suicide is lawful when her life became intolerable, and wanted her husband to accompany her. Under section 2(1) of the Suicide Act 1961, a person who aids or abets suicide commits an offence, and she was concerned that her husband would face prosecution on his return. The existing Code for Crown Prosecutors did not state the factors that would be considered in such a case.

History

Purdy applied for judicial review seeking an order requiring the Director of Public Prosecutions to publish a policy. The Divisional Court dismissed the application, and the Court of Appeal dismissed her appeal, both relying on earlier House of Lords authority that article 8 was not engaged. She appealed to the House of Lords.

Issue

Whether article 8 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, required the Director of Public Prosecutions to publish a policy specifying the factors he would take into account in deciding whether to prosecute a person who assisted a suicide abroad.

Held

The appeal was allowed unanimously. The absence of a clear policy meant that the interference with the right to respect for private life was not in accordance with the law, and the Director was required to promulgate an offence-specific policy.

Ratio

• Article 8 is engaged by the prospect of prosecution for assisting a suicide abroad, and an interference with it must be in accordance with the law, which requires that the law be accessible and its consequences foreseeable.
• The general Code for Crown Prosecutors was too general to enable a person in the position of Purdy's husband to know whether he would be prosecuted, so the Director had to publish a policy identifying the facts and circumstances to be considered.

The judgments

Key reasoning

• The European Court of Human Rights had held that the right to decide how and when to end one's life is part of private life under article 8, and the House was bound to take that into account, which required it to depart from its own earlier approach.
• The Director had a wide discretion, but where the discretion affects a person's ability to know the legal consequences of an action, the law must indicate the scope of the discretion with sufficient clarity, and the existing Code did not do so.
• Requiring a policy was a proportionate way of meeting the Convention, since it left the criminal offence untouched and left the Director to decide on the factors.

Where it fits in the module

Purdy appears under section 1 of the Constitutional Reform Act 2005 and the rule of law because it concerns the courts' power to require a prosecutor to state in clear terms how a discretion will be exercised. It also engages the relationship between the courts and Parliament in the sensitive area of assisted dying, and the role of the Director as independent of ministers. It raises the question whether the order effectively enlarges the scope for decriminalisation by the back door.

Criticisms

• Requiring a policy that sets out the circumstances in which prosecutions will not occur risks creating in effect a defence the legislature had not enacted, which is arguably a matter for Parliament.
• The reasoning that clarity was needed to meet the in accordance with the law requirement was combined with a view on the merits of the Convention right, blurring the court's role.
• The decision left the substantive criminal law unchanged and so handed the policy decision to an unelected prosecutor, which is hard to reconcile with democratic accountability.