European Court of Human Rights: case of Pretty v. the United Kingdom *.

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Mr M. Pellonpaa, President, Sir Nicolas Bratza, Mrs E. Palm, Mr J. Makarczyk, Mr M. Fischbach, Mr J. Casadevall, Mr S. Pavlovschi, judges, and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 19 March and 25 April 2002, delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 2346/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a United Kingdom national, Mrs Diane Pretty ("the applicant"), on 21 December 2001.

2. The applicant, who had been granted legal aid, was represented before the Court by Ms Chakrabarti, a lawyer practising in London. The United Kingdom Government ("the Government") were represented by their Agent, Mr Whomersley of the Foreign and Commonwealth Office, London.

3. The applicant, who is paralysed and suffering from a degenerative and incurable illness, alleged that the refusal of the Director of Public Prosecutions to grant an immunity from prosecution to her husband if he assisted her in committing suicide and the prohibition in domestic law on assisting suicide infringed her rights under Articles 2, 3, 8, 9 and 14 of the Convention.

4. The application was allocated to the Fourth Section of the Court (Rule 52 [section] 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 [section] 1 of the Convention), was constituted as provided in Rule 26 [section] 1 of the Rules of Court.

5. The applicant and the Government each filed observations on the admissibility and merits (Rule 54 [section] 3(b)). In addition, third-party comments were received from the Voluntary Euthanasia Society and the Catholic Bishops' Conference of England and Wales which had been given leave by the President to intervene in the written procedure (Article 36 [section] 2 of the Convention and Rule 61 [section] 3). The applicant replied to those comments (Rule 61 [section] 5).

6. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 March 2002 (Rule 59 [section] 2). There appeared before the Court: (a) for the Government Mr C. Whomersley, Agent, Mr J. Crow, Counsel, Mr D. Perry, Counsel, Mr A. Bacarese, Ms R. Cox, Advisers; (b) for the applicant Mr P. Havers, qc, Counsel, Ms F. Morris, Counsel, Mr A. Gask, Trainee solicitor, Mrs D. Pretty, Applicant, Mr B. Pretty, Applicant's husband.

   The Court heard addresses by Mr Crow and Mr Havers.

   THE FACTS

   1. THE CIRCUMSTANCES OF THE CASE

7. The applicant is a 43-year-old woman. She resides with her husband of 25 years, their daughter and granddaughter. The applicant suffers from motor neurone disease ("MND"). This is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumoma. No treatment can prevent the progression of the disease.

8. The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999. The disease is now at an advanced stage. She is essentially paralysed from the neck downwards, she has virtually no decipherable speech and she is fed by a tube. Her life expectancy is very poor, measurable only in weeks or months. However her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.

9. Although it is not a crime to commit suicide in English law, the applicant is prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961).

10. Intending that she might commit suicide with the assistance of her husband, the applicant's solicitor asked the Director of Public Prosecutions ("DPP"), in a letter dated 27 July 2001 written on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist her to commit suicide in accordance with her wishes.

11. In a letter dated 8 August 2001, the DPP refused to give the undertaking:

    Successive Directors--and Attorneys General--have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances.... 12. On 20 August 2001, the applicant applied for judicial review of the DPP's decision and the following relief:

    --an order quashing the decision of the DPP on 8 August 2001;

    --a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought;

    --a mandatory order requiring the DPP to give the undertaking sought, or alternatively

    --a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention.

13. On 17 October 2001, the Divisional Court refused the application holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention.

14. The applicant appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court. In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party), Lord Bingham of Cornhill held: [opinion omitted] "40. I would dismiss this appeal."

15. The other judges concurred with his conclusions. Lord Hope stated as

    regarded Article 8 of the Convention:

    "100.... Respect for a person's `private life', which is the only part of article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination. In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide. I think that to do so would be to stretch the meaning of the words too far." II. RELEVANT DOMESTIC LAW AND PRACTICE

    Suicide, assisted suicide and consensual killing

16. Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However, section 2(1) of the Suicide Act 1961 provides:

    "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." Section 2 (4) provides:

    "No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions." 17. Case-law has established that an individual may refuse to accept life-prolonging or life-preserving treatment:

    "First it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ..." Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864." 18. This principle has been most recently affirmed in Ms B v. an NHS Hospital, Court of Appeal judgment of 22 March 2002. It has also been recognised that "dual effect" treatment can be lawfully administered, that is treatment calculated to ease a patient's pain and suffering which might also, as a side-effect, shorten their life expectancy (e.g. Re J [1991] Fam 33).

    Domestic review of the legislative position

19. In March 1980, the Criminal Law Revision Committee issued its Fourteenth Report, "Offences against the Person" (Cmnd 7844), in which it reviewed inter alia the law relating to the various forms of homicide and the applicable penalties. In section F., the situation known as mercy killing was discussed. The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject, for example, to great bodily pain and suffering and for which a two-year maximum sentence was applicable, was unanimously withdrawn. It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds. Reference was made also to the difficulties of definition and the possibility that the "suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well."

20. It did however recommend that the penalty for assisting suicide be reduced to seven years, as being...