R (on the application of Purdy) v DPP [2009] UKHL 45
Material Facts
Purdy was suffering from incurable primary progressive multiple sclerosis. Her condition had
progressively deteriorated and would inevitably deteriorate further. She decided that if her life
became unbearable she would want to end it, and she would require her husband’s assistance to
travel to Switzerland where euthanasia was legal. Her husband was willing to assist her to travel, but
Purdy was concerned he would be prosecuted for assisting her suicide under s. 2(1) of the Suicide
Act 1961. Under s. 2(4) of the 1961 Act, prosecutions required the consent of the DPP. Purdy
requested information from the DPP as to the factors he would take into consideration in deciding
whether to prosecute. This was refused. Purdy applied for judicial review of the DPP’s decision on
the grounds that it interfered with her right to respect for private life under Article 8(1) ECHR.
Her application to the Court of Appeal (CA) for an order to (1) quash the DPP’s decision and (2)
compel the DPP to promulgate and/or disclose his policy. The CA declined to follow the ECtHR’s
judgment in Pretty v United Kingdom (2002) 35 EHRR 1. Instead, it followed the House of Lords (now
Supreme Court) in R (Pretty) v DPP [2002] 1 AC 800 and held that Article 8 was not engaged in
Purdy’s case. It further held that the law was sufficiently clear, that she was seeking immunity to
prosecution for her husband or for the DPP to promulgate a policy that would include defences to
assisted suicide that had not been enacted by Parliament, and the DPP did not have a duty to grant
this. Purdy appealed to the Supreme Court (SC).
Legal issues
Section 2(1) of the Suicide Act 1961 makes it an offence to aid, abet, counsel or procure suicide or
attempted suicide. Maximum punishment: 14 years. Under s. 2(4), prosecutions require the DPP’s
consent. There was evidence that 115 individuals had been given assistance to travel to another
country for the purposes of committing suicide there but that none of these cases had resulted in
prosecution – There seemed to be a gap between law and practice.
Two key questions arose: (1) Whether the SC should depart from its decision in R (Pretty) v. DPP and
follow the ECtHR in Pretty v. UK, in which it had held that Article 8(1) extended to the right to decide
to choose how to spend the last moments of one’s life.
(2) Whether the law was sufficiently clear and foreseeable to meet the requirements of Article 8(2)
of the ECHR that any interference with the exercise of an Article 8(1) right be in accordance with the
law and meet the requirements of accessibility and foreseeability (ECHR principle of legality).
Arguments of the Crown (on behalf of Purdy)
The criminalisation of assisted suicide interfered with an Article 8(1) right and therefore should meet
the requirements of the principle of legality. Greater precision was needed here given the
importance of the right to autonomy and the seriousness of the interference with it.
The law was not sufficiently foreseeable: (1) s. 2(1) of the Suicide Act 1961 in combination with the
Code for Crown Prosecutors (CPS Code) did not allow individuals to know the factors taken into
account in prosecution decisions in assisted suicide cases so as to enable them to regulate their
conduct accordingly; and (2) The terms of s. 2(4) and the CPS Code were so broad that there was a
risk that prosecution decisions would be arbitrary.
There was no reason in principle preventing DPP from setting out an offence-specific policy.
Flexibility not impeded by giving structure to decisions.
Material Facts
Purdy was suffering from incurable primary progressive multiple sclerosis. Her condition had
progressively deteriorated and would inevitably deteriorate further. She decided that if her life
became unbearable she would want to end it, and she would require her husband’s assistance to
travel to Switzerland where euthanasia was legal. Her husband was willing to assist her to travel, but
Purdy was concerned he would be prosecuted for assisting her suicide under s. 2(1) of the Suicide
Act 1961. Under s. 2(4) of the 1961 Act, prosecutions required the consent of the DPP. Purdy
requested information from the DPP as to the factors he would take into consideration in deciding
whether to prosecute. This was refused. Purdy applied for judicial review of the DPP’s decision on
the grounds that it interfered with her right to respect for private life under Article 8(1) ECHR.
Her application to the Court of Appeal (CA) for an order to (1) quash the DPP’s decision and (2)
compel the DPP to promulgate and/or disclose his policy. The CA declined to follow the ECtHR’s
judgment in Pretty v United Kingdom (2002) 35 EHRR 1. Instead, it followed the House of Lords (now
Supreme Court) in R (Pretty) v DPP [2002] 1 AC 800 and held that Article 8 was not engaged in
Purdy’s case. It further held that the law was sufficiently clear, that she was seeking immunity to
prosecution for her husband or for the DPP to promulgate a policy that would include defences to
assisted suicide that had not been enacted by Parliament, and the DPP did not have a duty to grant
this. Purdy appealed to the Supreme Court (SC).
Legal issues
Section 2(1) of the Suicide Act 1961 makes it an offence to aid, abet, counsel or procure suicide or
attempted suicide. Maximum punishment: 14 years. Under s. 2(4), prosecutions require the DPP’s
consent. There was evidence that 115 individuals had been given assistance to travel to another
country for the purposes of committing suicide there but that none of these cases had resulted in
prosecution – There seemed to be a gap between law and practice.
Two key questions arose: (1) Whether the SC should depart from its decision in R (Pretty) v. DPP and
follow the ECtHR in Pretty v. UK, in which it had held that Article 8(1) extended to the right to decide
to choose how to spend the last moments of one’s life.
(2) Whether the law was sufficiently clear and foreseeable to meet the requirements of Article 8(2)
of the ECHR that any interference with the exercise of an Article 8(1) right be in accordance with the
law and meet the requirements of accessibility and foreseeability (ECHR principle of legality).
Arguments of the Crown (on behalf of Purdy)
The criminalisation of assisted suicide interfered with an Article 8(1) right and therefore should meet
the requirements of the principle of legality. Greater precision was needed here given the
importance of the right to autonomy and the seriousness of the interference with it.
The law was not sufficiently foreseeable: (1) s. 2(1) of the Suicide Act 1961 in combination with the
Code for Crown Prosecutors (CPS Code) did not allow individuals to know the factors taken into
account in prosecution decisions in assisted suicide cases so as to enable them to regulate their
conduct accordingly; and (2) The terms of s. 2(4) and the CPS Code were so broad that there was a
risk that prosecution decisions would be arbitrary.
There was no reason in principle preventing DPP from setting out an offence-specific policy.
Flexibility not impeded by giving structure to decisions.
