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Caso Pretty - House of Lords Appunti scolastici Premium

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della decisione della House of Lords inglese relativa al caso Pretty. I temi sono: suicidio assistito,... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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34. If, as I have concluded, none of the articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that

article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this article

must fail on this ground.

35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the articles are engaged, it would be necessary to examine

whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the

disabled, but not the able­bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception.

The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no

defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their

own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of

the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the

suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were

prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person

to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no

justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the

exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as section 2(1)

makes clear.

36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some

instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence­creating

provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the

event of conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and

Laskey Jaggard and Brown v United Kingdom

others: (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse

of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry. "Mercy killing", as it is often called, is in

law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated

those who assisted the suicide of the non­vulnerable, it could not be administered fairly and in a way which would command respect.

37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned

friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any convention right.

The claim against the Director

38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against

him: that he had no power to grant the undertaking which Mrs Pretty sought.

39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement

on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution

of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only

under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion

made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to

explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so,

and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of

immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend

laws and the execution of laws without the consent of parliament was denied to the crown and its servants by the Bill of Rights 1688.

Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in

this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty.

He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed.

The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It

would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime

yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone.

40. I would dismiss this appeal.

LORD STEYN

My Lords,

41. This is the first occasion on which the House of Lords has been asked to consider the question of assisted suicide by a

terminally ill individual. She suffers from motor neurone disease and she has not long to live. The specific question before the House

is whether the appellant is entitled to a declaration that the Director of Public Prosecutions is obliged to undertake in advance that, if

she is assisted by her husband in committing suicide, he will not be prosecuted under section 2(1) of the Suicide Act 1961. If Mrs

Pretty is entitled to this relief, it follows that it may have to be granted to other terminally ill patients or patients suffering excruciating

pain as a result of an incurable illness, who want to commit assisted suicide. Her case is squarely founded on the Human Rights Act

1998, which incorporated the European Convention of Human Rights into English law. For her to succeed it is not enough to show

that the European Convention allows member states to legalise assisted suicide. She must establish that at least that part of section

2(1) of the 1961 Act which makes aiding or abetting suicide a crime is in conflict with her Convention rights. In other words, she must

persuade the House that the European Convention compels member states of the Council of Europe to legalise assisted suicide.

I. Motor neurone disease and assisted suicide.

42. Mrs Dianne Pretty is 42 years old and has been married for 25 years. She lives with her husband, daughter and

granddaughter. In November 1999 she was diagnosed as having motor neurone disease, a progressive neuro­degenerative disease

of motor cells within the central nervous system. Its cause is unknown. No treatment can prevent the inevitable progression of this

disease. It causes muscular weakness. Weakness of the arms and legs develop. It results in difficulty in swallowing and speaking.

Eventually control of breathing deteriorates. Death usually occurs as a result of weakness of the breathing muscles in association

with weakness of those muscles controlling speaking and swallowing leading to respiratory failure and pneumonia.

43. In March 2000 Mrs Pretty became confined to a wheelchair. In December 2000 her speech and swallowing became affected.

She is paralysed from the neck downwards. She has virtually no decipherable speech. The disease is now at an advanced stage.

Her life expectancy is low. She has only months to live. Yet her intellect and her capacity to make decisions is unimpaired. She is

able to give instructions to her lawyers and has done so.

44. The suffering of Mrs Pretty is acute and she is frightened and distressed at her short but bleak future. She is in some physical

pain but more importantly she is in constant dread of the day when she will no longer be able to swallow or breathe. She wishes to

be spared the suffering and loss of dignity which is all that is left of life for her. She wishes to control when and how she dies. But for

the disease she would be able to take her own life. The disease has, however, deprived her of the ability to commit suicide. Her

solicitor explained in an affidavit that her wishes are that her husband should assist her in committing suicide.

The agreed statement of facts and issues states:

"The disease prevents her from committing suicide unaided. Thus she wishes her husband to assist her and he has agreed, if the DPP will undertake not

to prosecute him. This proviso arises because absent such undertaking the appellant's husband will be liable to prosecution and imprisonment for the

offence of assisting suicide under section 2(1) of the Suicide Act."

There is, however, no information available as to how it is proposed that her husband would assist her suicide. Moreover, there is no

medical evidence showing what Mrs Pretty herself can do to carry out her wish. It has, however, been emphasised on her behalf that

the final act of suicide will be carried through by her.

45. The Suicide Act 1961 provides as follows:

"1. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.

2. (1) 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.

(2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in

question, the jury may find him guilty of that offence.

(3) . . .

(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."

Counsel explained that the assistance to be given by Mr Pretty to his wife would amount to aiding and abetting within the meaning of

section 2(1) but that Mr Pretty's conduct would not extend to counselling and procuring suicide.

46. The legal officer of Liberty asked the DPP to give an undertaking not to prosecute Mr Pretty if he assists in the suicide of his

wife. The letter described Mrs Pretty's condition and explained what she wanted to do and made a number of legal submissions. It

ended by saying:

"We very much hope you can provide us with the undertaking we seek, in view of our client's illness and the distress she is suffering we would be grateful

if you would let us have a reply within 7 days of the date of this letter."

On 8 August 2001 the DPP replied:

"I should like first to express my deepest sympathy to Mrs Pretty and to her family for the terrible suffering that she and they are having to bear.

You have asked for an undertaking that the Director would not consent to a prosecution of Mr Pretty under Section 2 of the Suicide Act 1961, were he to

assist his wife to commit suicide. You have made a number of points in relation to the European Convention on Human Rights; the Human Rights Act,

1998; and the Code for Crown Prosecutors. I have read your comments with care. Successive Directors ­­and Attorneys General ­ have explained that

they will not grant immunities that condone, require, or purport to authorise or permit future commission of any criminal offence, no matter how

exceptional the circumstances. I must therefore advise you that the Director cannot provide the undertaking that you seek.

Whilst I believe that I have no choice but to refuse your request, I deeply regret any further suffering that this refusal may cause."

Mrs Pretty issued an application for judicial review of the decision by the DPP not to give the undertaking.

47. The principal relief sought by Mrs Pretty was a declaration that the DPP had acted unlawfully in refusing to give an

undertaking that he would not consent to a prosecution of her husband for an offence under section 2(1) of the Suicide Act 1961 if

he should assist her in committing suicide. The Secretary of State was joined as an Interested Party because Mrs Pretty also sought

in the alternative a declaration in that section 2(1) of the 1961 Act is incompatible with section 4 of the 1998 Act.

II. The Judicial Review Proceedings.

48. Permission to apply for judicial review was granted. On 18 October 2001 the Divisional Court (Tuckey and Hale LJJ and Silber

J) in a detailed judgment of the court dismissed the application. The Divisional Court held: (i) the DPP has no power to grant the

undertaking sought; (ii) in any event, a decision of the DPP to grant or refuse to grant the undertaking would not be amenable to

judicial review; (iii) section 2(1) of the Suicide Act 1961 is not incompatible with the Convention.

49. After giving judgment, the Divisional Court certified three points of general public importance: (1) Does the DPP have power

under section 2(4) of the Suicide Act 1961 or otherwise to undertake not to consent to prosecute in advance of the relevant events

occurring? (2) If so, was he required in this case to undertake not to prosecute Mr Pretty if he were to assist his wife to commit

suicide having regard to her rights under articles 2, 3, 8, 9, and 14 of the Convention and his obligation to act compatibly with the

Convention? (3) If not, is section 2(1) of the Suicide Act 1961 incompatible with articles 2, 3, 8, 9, and/or 14 of the Convention?

50. An Appeal Committee granted leave to appeal. Given the circumstances the appeal was expedited. Subject to three points the

shape of the case is very much as it was presented to the Divisional Court. There has inevitably been some deterioration of Mrs

Pretty's condition. Secondly, there was a dispute at the hearing of the appeal before the House as to whether Mrs Pretty can

correctly be described as vulnerable. It is not possible for the House to express any view on this point. In the context of euthanasia

and assisted suicide the Report of the Select Committee on Medical Ethics, House of Lords Paper 21­I, 31 January 1994, there is a

relevant passage regarding the class of vulnerable people. Among its reasons for not recommending a relaxation of the existing law

regarding euthanasia and assisted suicide, the Select Committee observed, at p 49, para 239:

"We are also concerned that vulnerable people ­ the elderly, lonely, sick or distressed ­ would feel pressure, whether real or imagined, to request early

death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by

doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not,

however obliquely, encourage them to seek death, but should assure them of our care and support in life."

While Mrs Pretty may or may not be vulnerable, there is in the context of euthanasia and assisted suicide undoubtedly a class of

vulnerable people to be considered. This is important because the law must be stated for the generality of cases. The third point was

a lack of agreement on what palliative care is available to Mrs Pretty. She apparently visits a hospice where she receives some

medical and nursing care. In the final stages of the illness she will reside in the hospice and may, in the discretion of a consultant, be

sedated. That is all we know. I will return to this point at the end of this judgment.

51. On the hearing of the appeal the House heard oral submissions on behalf of Mrs Pretty, the DPP and the Home Secretary and

received written submissions from a Roman Catholic Archbishop as well as the Medical Ethics Alliance, the Society for the

Protection of Unborn Children and Alert. I wish to pay tribute to the quality of the arguments placed before the House.

III. The framework of the case.

52. It is necessary to explain two preliminary matters. First, terminally ill patients may sometimes be incompetent to take

decisions. This is not such a case. Mrs Pretty is fully competent to take decisions about her personal autonomy and in particular

about the question whether she wants to commit suicide and when and how. Secondly, there is a distinction between voluntary

(The Textbook of Criminal Law,

euthanasia and assisted suicide. Glanville Williams 2nd ed. (1983), at p 580) illustrates the

difference. If a doctor, to speed the dying of his patient, injects poison with the patient's consent, this is voluntary euthanasia and

murder. If the doctor places poison by the patient's side, and the patient takes it this will be assisted suicide and amount to the

commission of the offence under section 2(1) of the 1961 Act. The arguments before the House are concerned with cases falling in

the latter category. But to some extent the arguments about the two concepts are intertwined.

IV. The scheme of this judgment.

53. Reversing the order of considering the issues adopted by the Divisional Court, I will first examine whether Mrs Pretty has a

right to die with the assistance of her husband (or anybody else) enforceable against the state under the European Convention. In

require

other words, I will consider whether any of the articles of the European Convention relied on the state to render lawful

assisted suicide by a person in Mrs Pretty's position. It will, however, be necessary to sketch the contextual scene before I consider

the specific articles. Thereafter, I will briefly consider the position of the DPP in regard to requests for undertakings not to prosecute

made in advance of the commission of the criminal act.

V. The Contextual Scene.

Controversial Questions.

54. The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal

Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and

Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and

that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church,

Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On

the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant.

They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand,

there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are

often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted

suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die.

Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will

to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the

wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors

and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical

Glanville Williams, The

experts and ordinary people are endless. The literature is vast: see for a sample of the range of views:

Sanctity of Life and the Criminal Law, Ronald Dworkin, Life's Dominion: An Argument About

1958, chap 8.

Abortion and Euthanasia, Examined: Ethical clinical and legal perspectives, Essays

1993, chap 7;Euthanasia

edited by John Keown, Otlowski, Voluntary Euthanasia and the Common Law, Mary

1995; 1997, chap 5­8;

Warnock, An Intelligent Person's Guide to Ethics, 1998, chap 1. It is not for us, in this case, to express a view on these

arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken

diametrically opposite views and still do.

The Relevance of Existing English Law.

55. Given the fact that Mrs Pretty's arguments are founded on the European Convention, the existing position under English law,

even if in large measure very similar to that under other European legal systems, cannot be decisive. But it demonstrates how

controversial the subject of the legalisation of euthanasia and assisted suicide is in Europe. In outline the position in England is as

follows. By virtue of legislation suicide is no longer an offence and a suicide pact may result in a verdict of manslaughter. Mercy

killing in the form of euthanasia is murder and assisted suicide is a statutory offence punishable by 14 years' imprisonment. A

St George's Health Care Trust v S

competent patient cannot be compelled to undergo life saving treatment: [1999] Fam 26.

Under the double effect principle medical treatment may be administered to a terminally ill person to alleviate pain although it may

Airedale NHS Trust v Bland

hasten death: [1993] AC 789, 867D, per Lord Goff of Chieveley. This principle entails a distinction

The trial of Dr David Moor,

between foreseeing an outcome and intending it: see also Anthony Arlidge, [2000] Crim LR 31. The

Bland

case of involved a further step: the House of Lords held that under judicial control it was permissible to cease to take active

steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient

NHS Trust A v H

and letting him die: see also [2001] 2 FLR 501. These are at present the only inroads on the sanctity of life

Alkmaar

principle in English law. In this corner of the law England is not an island on its own. It is true that since the decision of the

Supreme Court on 27 November 1984 the Dutch courts, relying on the principle of "noodtoestand" (necessity), relaxed the

prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor's respect for life and his

duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical

Otlowski, Voluntary

opinion. It is important to note that this line of decisions is not based on the European Convention. See also

Euthanasia and the Common Law, (1997), 391­450. Earlier this year the Parliament of the Netherlands has enacted a

statute, viz the Termination of Life for Request and Assisted Suicide (Review Procedures) Act 2001, which formalises a relaxation of

the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only

permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable

medical supervision. It is to be noted, however, that the UN Human Rights Committee in a report dated 27 August 2001 expressed

John

serious concerns about the operation of the system: CCPR/CO/72/NET, para 5: see also a review of other concerns in

Keown, Euthanasia Examined,1995, chap 16. The other member states of the Council of Europe have not legalised

euthanasia or assisted suicide: compare, however, the position in Switzerland: see "Assisted Dying and the laws of three European

countries" by Lesley Vickers (1997) 147 NLJ 610. Furthermore, the Parliamentary Assembly of the Council of Europe (the

sponsoring body for the Convention) has adopted Recommendation 1418 (1999). In paragraph 9(c), it recommended that the

Committee of Ministers should encourage the member states of the Council to respect and protect the dignity of terminally ill or dying

persons in all respects, by (among other things) "upholding the prohibition against intentionally taking the life of terminally ill or dying

persons", while: "(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hands of another

person;

(iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions

intended to bring about death."

Paragraph 9(c)(iii) plainly covers assisted suicide. This recommendation is testimony of prevailing public opinion in member states.

Given the fact that Mrs Pretty's case is based on the European Convention I have concentrated on European developments. It is,

Vacco v

however, noteworthy that in the United States and Canada arguments similar to that of Mrs Pretty ultimately failed:

Quill Washington v Glucksberg Rodriquez v Attorney­General of

(1997) 521 US 793; (1997) 521 US 702;

Canada [1994] 2 LRC 136.

The reach of human right's texts.

56. The human rights movement evolved to protect fundamental rights of individuals either universally or regionally. The theme of

the Declaration of 1948 was universal. It involved a common conception of human rights capable of commanding wide acceptance

Johnson and

throughout the world despite huge differences between countries in culture, in religion, and in political systems:

Symonides, The Universal Declaration of Human Rights: A History of its Creation and Implementation: 1948­

1998, Unesco, Glendon, A World Made New,

1998, at p 39; 2001, at p 176. Any proposal that the Universal Declaration

should require states to guarantee a right to euthanasia or assisted suicide (as opposed to permitting states by democratic

institutions so to provide) would have been doomed to failure. The aspirational text of the Universal Declaration was the point of

departure and inspiration of the European Convention which opened for signature in 1950. It is to be noted, however, that the

European Convention embodied in some respects a narrower view of human rights than the Universal Declaration. The framers of

the European Convention required a shorter and uncontroversial text which would secure general acceptance among European

nations. Thus the European Convention contains, unlike the Universal Declaration, no guarantees of economic, social and cultural

rights. A further illustration relates to the guarantees of equality in the two texts. The guarantee in the Universal Declaration is free

standing and comprehensive: see article 7. In the European Convention the provision is parasitic: it is linked with other Convention

rights: article 14. The language of the European Convention is often open textured. In 1950 The Lord Chancellor observed:

"Vague and indefinite terms have been used just because they were vague and indefinite, so that all parties, hoping and expecting that these terms will

be construed according to their separate points of view, could be induced to sign them." (Cabinet Office memorandum CAB 130/64)

Sir Hartley Shawcross, QC, the Attorney General, attributed the lack of clarity in the drafting to a compromise to accommodate the

different legal systems involved: see Geoffrey Marston, "The United Kingdom's Part in the Preparation of the European Convention

on Human Rights, 1950", (1993) 42 ICLQ 796, 818 and 819. The generality of the language permits adaptation of the European

Convention to modern conditions. It is also, however, necessary to take into account that in the field of fundamental beliefs the

European Court of Human Rights does not readily adopt a creative role contrary to a European consensus, or virtual consensus. The

fact is that among the 41 member states, ­ North, South, East and West ­ there are deep cultural and religious differences in regard

to euthanasia and assisted suicide. The legalisation of euthanasia and assisted suicide as adopted in the Netherlands would be

requires

unacceptable to predominantly Roman Catholic countries in Europe. The idea that the European Convention states to

render lawful euthanasia and assisted suicide (as opposed to allowing democratically elected legislatures to adopt measures to that

effect) must therefore be approached with scepticism. That does not involve support for the proposition that one must go back to the

original intent of the European Convention. On the contrary, approaching the European Convention as a living instrument, the fact is

requiring

that an interpretation states to legalise euthanasia and assisted suicide would not only be enormously controversial but

profoundly unacceptable to the peoples of many member states.

Policy grounds.

57. If section 2 of the 1961 Act is held to be incompatible with the European Convention, a right to commit assisted suicide would

not be doctor assisted and would not be subject to safeguards introduced in the Netherlands. In a valuable essay Professor Michael

Freeman trenchantly observed "A repeal of section 2 of the Suicide Act 1961, without more, would not be rational policy­making. We

would need a 'Death with Dignity' Act to fill the lacuna": "Death, Dying and the Human Rights Act 1998" (1999), 52 CLP 218, at 237.

That must be right. In our parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a

fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective

regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result

with all the necessary in­built protections. Essentially, it must be a matter for democratic debate and decision making by legislatures.

VI. The Specific Articles.

58. In combination the contextual factors which I have alluded to justify an initial disbelief that any of the articles of the European

Convention could possibly bear the strong meaning for which counsel for Mrs Pretty must argue. Despite his incisive arguments the

position is in my opinion clear. None of the articles can bear the interpretation put forward.

Right to life.

59. Article 2 provides:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court

following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely

necessary:

a) in defence of any person from unlawful violence;

b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c) in action lawfully taken for the purpose of quelling a riot or insurrection."

Counsel for Mrs Pretty argued that article 2 and in particular its first sentence acknowledges that it is for the individual to choose

whether to live or die and that it protects her right of self determination in relation to issues of life and death. This interpretation is not

sustainable. The purpose of article 2.1 is clear. It enunciates the principle of the sanctity of life and provides a guarantee that no

individual "shall be deprived of life" by means of intentional human intervention. The interpretation now put forward is the exact

opposite viz a right of Mrs Pretty to end her life by means of intentional human intervention. Nothing in the article or the

jurisprudence of the European Court of Human Rights can assist Mrs Pretty's case on this article.

Prohibition of torture.

60. Article 3 provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The core of counsel's argument is that under article 3 the state's obligations are to take effective steps to ensure that no one shall be

subjected to inhuman or degrading treatment. For my part article 3 is not engaged. The word "treatment" must take its colour from

the context in which it appears. While I would not wish to give a narrow interpretation to what may constitute degrading treatment,

the concept appears singularly inapt to convey the idea that the state must guarantee to individuals a right to die with the deliberate

assistance of third parties. So radical a step, infringing the sanctity of life principle, would have required far more explicit wording. But

counsel argues that there is support for his argument to be found in the jurisprudence of the ECHR on the "positive obligations" of a

D v United

state to render effective the protection of article 3. For this proposition he cites the decision of the ECHR in

Kingdom (1997) 24 EHRR 423. The case concerned the intended deportation of an individual in the final stages of an incurable

disease to St Kitts where there would not be adequate treatment for the disease. The ECHR held that in the exceptional

circumstances of the case the implementation of the decision to remove the individual to St Kitts would amount to inhuman treatment

D v United Kingdom

by the UK. Unlike the present case does not involve any positive action (comparable to the intended

deportation) nor is there any risk of a failure to treat her properly. Instead the complaint is that the state is guilty of a failure to repeal

treatment".

section 2(1) of the 1961 Act. The present case plainly does not involve "inhuman or degrading

Right to respect for Private Life and Family.

61. Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a

democratic society in the interests of national security, public safety or the economic well­being of the country, for the prevention of disorder or crime, for

the protection of health or morals, or for the protection of the rights and freedoms of others."

Counsel submitted that this article explicitly recognises the principle of the personal autonomy of every individual. He argues that this

principle necessarily involves a guarantee as against the state of the right to choose when and how to die. None of the decisions

cited in regard to article 8 assist this argument. It must fail on the ground that the guarantee under article 8 prohibits interference with

the way in which an individual leads his life and it does not relate to the manner in which he wishes to die.

62. If I had been of the view that article 8 was engaged, I would have held (in agreement with the Divisional Court) that the

interference with the guarantee was justified. There was a submission to the contrary based on the argument that the scope of

section 2(1) is disproportionate to its aim. This contention was founded on the supposition that Mrs Pretty and others in her position

are not vulnerable. It is a sufficient answer that there is a broad class of persons presently protected by section 2 who are

vulnerable. It was therefore well within the range of discretion of Parliament to strike the balance between the interests of the

community and the rights of individuals in the way reflected in section 2(1).

Freedom of thought, conscience and religion.

63. Article 9 provides:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either

alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic

society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Counsel submitted that Mrs Pretty is entitled to manifest her belief in assisted suicide by committing it. This cannot be right. This

article was never intended to give individuals a right to perform any acts in pursuance of whatever beliefs they may hold, e.g. to

attack places where experiments are conducted on animals. The article does not yield support for the specific proposition for which it

is invoked. In any event, for the reasons already discussed, section 2 is a legitimate, rational and proportionate response to the wider

problem of vulnerable people who would otherwise feel compelled to commit suicide.

Prohibition of Discrimination.

64. Article 14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Counsel submits that Mrs Pretty is in effect treated less favourably than those who are physically capable of ending their lives. The

Divisional Court held that article 14 is not engaged. The alleged discrimination can only be established if the facts of the case fall

Botta v Italy

within articles 2, 3, 8 or 9: (1998) 26 EHRR 241, 259, para 39. They do not. This is a sufficient reason to reject this

argument. But there is a more fundamental reason. The condition of terminally ill individuals, like Mrs Pretty, will vary. The majority

will be vulnerable. It is the vulnerability of the class of persons which provides the rationale for making the aiding and abetting of

suicide an offence under section 2(1) of the 1961 Act. A class of individuals is protected by section 2(1) because they are in need of

protection. The statutory provision does not therefore treat individuals in a discriminatory manner. There is no unequal treatment

before the law. In any event, for reasons already given, section 2(1) is fully justified.

VII. The position of the DPP.

65. This issue centres on the nature of the DPP's discretion to grant or refuse his consent to criminal proceedings under section

2(1) of the 1961 Act. This is a provision of primary legislation. The discretion under section 2(4) is contained in a criminal statute. It is

concerned with the deep­rooted sanctity of life principle. In this context it is plainly beyond the power conferred by section 2(4) for

the DPP to choose not to enforce section 2(1) or to dis­apply it. These propositions are self evident and beyond reasonable

challenge. The DPP may not under section 2(4) exercise his discretion to stop all prosecutions under section 2(1). It follows that he

may only exercise his discretion, for or against a prosecution, in relation to the circumstances of a specific prosecution. His discretion

can therefore only be exercised in respect of past events giving rise to a suspicion that a crime under section 2(1) has been

committed. And then the exercise of this discretion will take into account whether there is a realistic prospect of securing a conviction

and whether a prosecution would be in the public interest. To hold that section 2(4) empowers the DPP to give the undertaking

sought in this case is not justified by the statutory language, and would be contrary to the manifest limited purpose of section 2(4).

On this point I am in complete agreement with the careful judgment of the Divisional Court.

66. It is, however, necessary to consider whether, apart from the terms of the section 2(4) of the 1961 Act, the DPP has any

power to undertake in advance not to bring criminal proceedings in respect of a contemplated course of action. In agreement with

the Divisional Court I would answer this question No. But I would qualify the thrust of the valuable judgment of the Divisional Court in

duty

one respect. The fact that there is a under section 10 of the Prosecution of Offences Act 1985 on the DPP to issue a general

code for Crown Prosecutors does not necessarily mean that he may not ever, in his absolute discretion, give guidance as to how the

discretion will be exercised in regard to particular offences. It is important to bear in mind what is under consideration, viz the width

of the powers of the DPP. One should not be over prescriptive on this subject. An example from Scotland was given of the Crown

Agent stating that no proceedings for a contravention of section 6(1)(a) of the Road Traffic Act 1972 would be instituted on the basis

of a breath alcohol reading of less than 40 micrograms. But I envisage that the occasions on which such statements would be

appropriate and serve the public interest would be rare. Subject to this narrow qualification I would accept as sound the policy of the

DPP never to announce in advance, whether he will or will not bring criminal proceedings. Certainly, it is beyond his power to

indicate, before the commission of a particular crime, that he will or will not prosecute if it is committed. But I regard this point as a

diversion from the issues before the House. The response of the DPP in this case cannot be faulted.

67. There was some debate about the possibility of judicial review of a decision by the DPP to refuse or grant consent to a

prosecution. If the DPP refuses consent, the only remedy is judicial review. On the other hand, if he grants consent a defendant can

raise any complaint in the criminal trial or on appeal. Since satellite litigation should be avoided in such cases, I would stand by the

R v Director of Public Prosecutions, Ex p Kebilene

rule in [2000] 2 AC 326, that, absent dishonesty, mala fides or an

exceptional circumstance, judicial review is not available in such cases.

VIII. Conclusion.

68. The logic of the European Convention does not justify the conclusion that the House must rule that a state is obliged to

legalise assisted suicide. It does not require the state to repeal a provision such as section 2(1) of the 1961 Act. On the other hand, it

is open to a democratic legislature to introduce such a measure. Our Parliament, if so minded, may therefore repeal section 2(1) and

put in its place a regulated system for assisted suicide (presumably doctor assisted) with appropriate safeguards.

IX. Palliative Care.

69. The Report of the Select Committee on Medical Ethics stated in 1994 that in the United Kingdom palliative care has been

developed to a high standard by the hospice movement: p 49, para 239. The uncertainty in this case about the standard of palliative

care which Mrs Pretty is receiving and will be entitled to receive in the last stages of her illness prompts me to express the hope that

all is being done for her, and will be done, to make a little more tolerable what remains of her life.

X.

Disposal.

70. In this sad case the Human Rights Act does not avail Mrs Pretty. For the reasons I have given, as well as the reasons given

by Lord Bingham of Cornhill and Lord Hope of Craighead, the appeal must be dismissed.

LORD HOPE OF CRAIGHEAD

My Lords,

71. Mrs Pretty is burdened with a misfortune which has attracted widespread sympathy. She is suffering from a terminal illness

which she wishes to bring to an end at a time of her own choosing by committing suicide. But she is unable to commit that act as the

same illness has deprived of her of the ability to do it without help. The fact that her illness has driven her to contemplate suicide

might be thought to indicate a lack of judgment on her part. But I believe that the decision which she has taken in such extreme

circumstances ought not to be criticised. It has been stressed she is well able to make rational decisions as to her own future. I

would accept her assurance that she has reached the decision to end her life of her own free will and that she has not been

subjected to outside pressure of any kind.

72. Important questions of medical ethics and of morality have been raised by her request that her husband should be allowed to

help her to end her own life. They are the subject of detailed comment in the helpful written submissions which have been submitted

by the interveners in this appeal. They are of great interest to society. But they are not the questions which have brought this matter

before the court. The questions which your Lordships have to decide are questions of law. Mrs Pretty has invoked the Human Rights

Act 1998. She is entitled to know where the law now stands on the issue of assisted suicide.

73. The basic framework within which Mr Havers QC developed his arguments is clear. The act of suicide itself, for long a

Commentaries on the Laws of England

common law crime in English law (Blackstone, (1769), vol 4, Chap 14, p 189) is no

longer criminal. Section 1 of the Suicide Act 1961 removed it from the criminal law. This means that a person who attempts to

commit suicide but survives can no longer be prosecuted. But those who aid, abet, counsel or procure the suicide of another, or an

attempt by another, to commit suicide commit an offence. Section 2(1) of the 1961 Act provides that they shall be liable on conviction

to imprisonment for a term not exceeding 14 years. That is the sanction which would confront Mr Pretty if in any way he were to help,

or attempt to help, his wife to end her life.

74. Proceedings for an offence under that section cannot be brought except by or with the consent of the Director of Public

Prosecutions: section 2(4). So Mrs Pretty has asked him to undertake that if Mr Pretty assists her to commit suicide he will not be

prosecuted. The Director says that he is unable to give the undertaking which has been sought. The argument has therefore focused

on Mrs Pretty's rights under the Human Rights Act 1998 and on the powers of the Director. It proceeds in this way. Firstly, it is said

that the Director has power to give the undertaking which has been sought. Second, there is the fact that section 6(1) of the Human

Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. So the

argument asserts that the Director is obliged to give the undertaking, because to withhold it would be incompatible with Mrs Pretty's

Convention rights. Third, it is said that if the Director does not have power to give the undertaking, section 2(1) of the 1961 Act is

incompatible with her Convention rights as it imposes a blanket and indiscriminate ban on all assisted suicides.

Section 6(1) of the Human Rights Act 1961

75. Had it not been for the Human Rights Act 1998, Mrs Pretty's case that the Director was obliged to give the undertaking would

have been unarguable. Section 2(4) of the Suicide Act 1961 leaves no room for doubt on this point. It leaves decisions as to whether

or not a contravention of section 2(1) of the Act should be prosecuted to the discretion of the Director. But the Director is a public

authority for the purposes of section 6(1) of the 1998 Act. It is unlawful for him to act in a way which is incompatible with a

Convention right. Section 6(6) provides that "an act" for this purpose includes a failure to act. A decision as to whether or not to

Brown v Stott

prosecute has been held to be an act for the purposes of section 57(2) of the Scotland Act 1998: [2001] 2 WLR

817. I see no reason why the word "an act" in section 6(1) of the Human Rights Act 1998, which applies throughout the United

Kingdom, should be construed differently. I would hold that a decision by the Director whether or not to prosecute is an act for the

purposes of that subsection.

76. Mr Havers seeks to apply section 6(1) to the refusal of the Director to give an undertaking that he would not prosecute Mr

Pretty. But in my opinion the words "an act", construed with the benefit of section 6(6), do not require a public authority to do

something which it has no power to do. A refusal by a public authority to do something which it has no power to do is not a failure to

act. A public authority can only act within its powers. Section 6(1) is concerned with acts which are otherwise lawful but are made

unlawful by the 1998 Act on Convention grounds. The Director cannot be held to have acted unlawfully within the meaning of section

6(1) of the 1998 Act when he declined to give the undertaking unless it can be demonstrated that the undertaking was one that he

had power to give.

R v Director of Public Prosecutions, Ex p Kebilene

77. In [2000] 2 AC 326 it was held that a decision by the Director to

consent to a prosecution was not amenable to judicial review, in the absence of dishonesty, mala fides or an exceptional

circumstance. I would approach questions about a refusal by the Director to give an undertaking not to prosecute in the same way.

But a sound rule must not be applied so rigidly that it becomes a denial of justice. It is important to observe the assumptions on

which the rule that was described in that case by Lord Steyn, at p 371F­G, was based. They were that to allow challenges to be

made by means of the judicial review process would open the door to delay in the conduct of criminal proceedings, and that the

challenges could and should take place in the criminal trial or on appeal.

78. The argument in this case assumes that unless the undertaking is given Mr Pretty will not act to help Mrs Pretty to commit

suicide. If the undertaking is not given there will be nothing to prosecute. We are not dealing in this case with the straightforward

situation in which a person seeks an assurance after the event that he will not be prosecuted. So it is no answer for Mrs Pretty to be

told that the matter should be dealt with at a criminal trial or on appeal. There will be no criminal trial in which the issue as to whether

the Director is acting compatibly with Mrs Pretty's Convention rights can be tested. In my opinion it is open to her to raise the issue

by judicial review in these exceptional circumstances.

The Director's powers

79. The question whether or not a law officer (I include in that expression the Director as well as the Government Law Officers)

should or should not consent to a prosecution is one which the judiciary must approach with caution and with due deference. Issues

of policy may well be involved, and they should be left to the Government Law Officers to answer for in Parliament. The issues of

fact will be involved, and they may not be suitable for discussion in open court before trial. In practice therefore our system of public

prosecution depends to a large extent on the integrity and judgment of the public prosecutor. He is likely to be in the best position to

judge what is in the public interest. His judgment must be respected by the judiciary. It is against that background that I approach the

question whether the Director has power to give the undertaking which has been sought.

80. It is important to identify precisely what it is that is being sought from the Director. He is not being asked simply for a statement

about the policy which he will follow in cases of assisted suicide. If that was all that was being asked for, I would not regard it as

beyond his powers to make the statement. Mr Perry has submitted that he has no such power, but I would not accept that argument.

In my opinion the Director is entitled to form a policy as to the criteria which he will apply when he is exercising his discretion under

section 2(4) of the 1961 Act. If he has such a policy, it seems to me to follow that he is entitled to promulgate it. I would hold that

these matters lie entirely within the scope of the discretion which has been given to him by the Act.

81. Some guidance is to be found in the practice which is followed in Scotland in the exercise of his common law powers by the

Law Hospital NHS Trust v Lord

Lord Advocate. A recent example, following the decision of the Court of Session in

Advocate, 1996 SLT 848, is to be found in his statement of policy regarding prosecutions following the withdrawal of life sustaining

treatment from patients in a permanent or persistent vegetative state: see pp 860D­E and 867B­C of that report. Another is the

statement issued in September 1983 by the Crown Agent on behalf of the Lord Advocate, following a statement to the same effect

issued on 25 March 1983 by the Home Office (Home Office Circular No 46/1983), as to the policy which would be followed in the

Lockhart v

prosecution of drivers for drink driving offences based on evidence produced by a breath testing machine: see

Deighan, 1985 SLT 549. The Lord Advocate has not issued a statement as to his policy regarding the prosecution of assisted

suicide, which in Scotland is a common law crime. He would have power to do so if he thought that in the public interest this was

appropriate.

82. But I do not see how the Director could be compelled to issue a statement of policy. In Scotland the question whether such

statements should be issued are regarded as being entirely a matter for the Lord Advocate. It has never been suggested that he

could be ordered to do this by the court. But in any event it is not as a statement of policy that the undertaking has been sought.

What Mrs Pretty seeks is an undertaking, before the event occurs, that if her husband helps her to commit suicide he will not be

prosecuted. I am not aware of any case where the Lord Advocate has given an undertaking of that kind. It is not his function to

permit individuals to commit acts which the law treats as criminal.

83. Mrs Pretty contends that the Director is obliged to give the undertaking because, if he were to decline to give it, he would be

acting incompatibly with her Convention rights. As I see it, this argument raises two distinct issues. The first is whether any of Mrs

Pretty's Convention rights are engaged at all in this case. Unless it can be shown that the Director's refusal is incompatible with at

least one of them, the argument that section 6(1) of the 1998 Act makes it unlawful for him to refuse the undertaking disappears. The

second is whether, if Mrs Pretty's Convention rights are engaged, the undertaking which she has sought is one which the Director is

obliged to give to her. I have already indicated that this raises difficult issues of both fact and policy. I shall deal first with Mrs Pretty's

Convention rights.

The Convention rights

84. Mr Havers submitted that Mrs Pretty has a Convention right to the assistance of her husband in committing suicide. He was at

pains to point out that her case under the European Convention for the Protection of Human Rights and Fundamental Freedoms was

not that it gave her a right to die. She was asserting a right to control how and when she died as part of her right to life, without being

discriminated against on account of her physical disability. She was also asserting a right of self­determination. She had made up

her own mind about the course which she wished to follow to end her life. She would, but for her disability, have intended to follow

that course without seeking assistance from anybody.

85. As I said earlier, it is not for us to form a judgment on the ethical or moral issues which these submissions have raised. That

they have a part to play in the making of our laws is not in doubt: see the Report of the House of Lords Select Committee on Medical

Ethics 1994 (Session 1993­94, HL 21­I). The Convention too is the product of a broad consensus of international opinion about the

core values which demand respect for human life and human dignity. It is against that background that we must answer the question

which she has raised, which is a question of law. It is whether the articles of the Convention on which she relies confer the rights she

needs to demonstrate if she is to make good her argument that the Director's refusal to give the undertaking is unlawful under

section 6(1) of the 1998 Act. We must pay close attention to the words used in the Convention and, where appropriate, to the

jurisprudence of the European Court of Human Rights. Throughout, we must bear in mind that the rights which are in question are

rights which the individual has against the state. They do not exist in the abstract. Their function is to control the actions of the state

in its relationship with the individual.

(a) article 2

86. The short point here is whether the Director's refusal to give the undertaking is incompatible with the first sentence of this

article. It provides that everyone's right to life "shall be protected by law." The remaining parts of the article deal with the

circumstances in which a person may be deprived of life. They plainly have nothing to do with Mrs Pretty's dispute with the Director.

87. It is important to observe both what the sentence says and what it does not say. The right to which it refers is the right to life.

But it does not create a right to life. The right to life is assumed to be inherent in the human condition which we all share. Nor does it

create a right to self­determination. It does not say that every person has the right to choose how or when to die. Nor does it say that

the individual has a right to choose death rather than life. What the first sentence does ­ and all it does ­ is to state that the right to

life must be protected by law. This protection operates both negatively and positively. It enjoins the state to refrain from the

Osman v United Kingdom

intentional and unlawful taking of life. It also enjoins the state to safeguard lives: (1998) 29 EHRR

245, 305, para 115. But the protection of human life is its sole object.

88. The Director's refusal to give the undertaking has not disturbed or interfered with Mrs Pretty's right to life. Nothing that he has

done in response to her request is contrary to any law which is designed to safeguard life. On the contrary, his act in declining to

give the undertaking to enable Mr Pretty to assist in his wife's suicide is compatible with the opening words of the second sentence

of the article. It provides that no­one shall be deprived of his life intentionally. As the Divisional Court pointed out in para 41 of its

judgment, for a third person to take active steps deliberately to deprive another of life, even with the consent of the person thus

deprived, is forbidden by the article. The article is all about protecting life, not bringing it to an end. It is not possible to read it as

obliging the state to allow someone to assist another person to commit suicide. I would hold that her claim does not engage any of

her rights under this article.

(b) article 3

89. The argument with regard to this article is that Mrs Pretty will inevitably suffer inhuman or degrading treatment if the disease is

allowed to run its course. It is not suggested that the Director has done anything which is directly prohibited by the article. The

argument concentrates on its positive effects ­ what the state must do to ensure that the individual does not suffer treatment of the

kind that it prohibited. The terminal stages of motor neurone disease provide the background. The inability to swallow leads to

breathlessness and to the sensation of choking, as muscle power in the mouth and throat degenerates. But awareness and mental

function is usually unimpaired. The patient can be expected to suffer increasing anxiety and mental anguish, as she succumbs to the

symptoms of the disease. Death usually results from respiratory failure and pneumonia. Mrs Pretty says that by declining to give the

undertaking the Director has taken a decision which will subject her to these tragic consequences. She says that he has subjected

her to inhuman and degrading treatment within the meaning of the article.

90. The European Court has repeatedly said that article 3 prohibits torture or inhuman or degrading treatment or punishment in

Chahal v United Kingdom D v United Kingdom(1997)

terms which are absolute: (1996) 23 EHRR 413, 456­457, para 79;

24 EHRR 423, 447­448, paras 47, 49. From this proposition two things follow. First, only serious ill­treatment will be held to fall within

A v United Kingdom

the scope of the expression "inhuman or degrading treatment or punishment." The Court said in (1998) 27

EHRR 611, 629, para 20, that ill­treatment must attain a minimum level of severity if it is to fall within the scope of the article. It also

said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and

context of the treatment which is in issue. Second, although the absolute prohibition is not capable of modification on grounds of

proportionality, issues of proportionality will arise where a positive obligation is implied. The jurisprudence of the European court

Osman v United Kingdom

shows that where positive obligations arise they are not absolute. In (1998) 29 EHRR 245, 305, para

116 the court recognised that such obligations must be interpreted in way which does not impose an impossible or disproportionate

burden on the authorities. This approach is consistent with that which the court takes where other rights than those expressly stated

Brown v Stott

are read into an article as implied rights: see [2001] 2 WLR 817, 851B­E. This makes it necessary to pay close

attention to the question whether the act in question is one which is expressly prohibited or is based upon a positive obligation which

is implied into the article.

91. As for the question whether the consequences of not giving the undertaking will attain the required minimum level of severity,

the facts must be seen in their whole context. Mrs Pretty cannot be forced to accept medical treatment for her condition as it reaches

the terminal stages, but it is relevant to her case to see what is on offer. In its Response to the Report of the Select Committee on

Medical Ethics (May 1994, Cm 2553) the government stated, in its comment on para 288 of the Report, that it would encourage the

development of palliative care in all settings to ensure that patients received sensitive care and relief from pain and other distressing

symptoms. Your Lordships were informed that nursing care and palliative treatment is already being provided to Mrs Pretty and that

it will continue to be available. The use of drugs such as opiates in the form of morphine may be helpful in the terminal stages in

relieving the distress of breathlessness and the sensation of choking. It has not been possible in these proceedings to examine the

facts in detail. But there is enough information available to us to cast serious doubt on the question whether the consequences of the

refusal, taken as a whole in the context of the treatment which is available, attain the minimum level of inhuman or degrading

treatment within the meaning of the article.

92. Then there is the nature of the Director's act. It is clear that he is not directly responsible for the disease or for its

consequences. Nothing has been identified that he has done and should be restrained from doing in order to remove or alleviate

these consequences. I would conclude that we are not dealing here with a case with an act which is expressly prohibited. The

argument is that the article applies positively, as it requires the Director to do something to avoid the incompatibility. This raises the

question whether the Director's refusal to give the undertaking is incompatible with article 3 because it is disproportionate.

93. Three matters fall to be considered where questions arise as to whether an interference with a Convention right is

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and

proportionate. In

Housing Nyambiri v National Social Security

[1999] 1 AC 69, Lord Clyde adopted the analysis of Gubbay CJ in

Authority Rodriguez v Attorney General

[1996] 1 LRC 64 drawing on jurisprudence from South Africa and Canada: see also

of Canada [1994] 2 LRC 136, 161H­J per Lamer CJ. The first is whether the objective which is sought to be achieved is sufficiently

important to justify limiting the fundamental right. The second is whether the means chosen are rational, fair and not arbitrary. The

third is whether the means used impair the right as minimally as is reasonably possible.

94. As to these issues, the following points seem to me to point conclusively in favour of the Director. First, there is the objective.

The Director is entitled to regard the purpose of section 2(1) of the 1961 Act as being to protect the vulnerable from pressure to end

their own lives. In its Response to para 295 of the Report of the Select Committee on Medical Ethics the government stated that it

could see no basis for permitting assisted suicide as this would be open to abuse and would put the lives of the weak and vulnerable

at risk. So the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal statement of the prohibition of

acts calculated to end another person's life.

95. Then there is the question whether the Director's refusal is rational, fair and not arbitrary. In my opinion he is entitled to take

into account the nature of the act which he was asked to sanction in this case. All he was told was that Mrs Pretty would be helped

by her husband to commit suicide. Where, when and how this was to be done was not and probably cannot at this stage be

specified. There is no suggestion that medical assistance will be available or that the act will be supervised by anybody. Sopinka J

Rodriguez v Attorney­General of Canada

observed in [1994] 2 LRC 136, at p 189H­J that the official position of various

medical associations, including the British Medical Association, is against decriminalising assisted suicide. It is common knowledge

that most members of the medical profession are opposed to any involvement in this activity. A clear distinction is preserved

between the withdrawal of treatment and palliative care on the one hand and acts on the other whose sole purpose is to destroy life.

Moreover, the margin between assisting suicide and euthanasia is so slender in Mrs Pretty's case as to be impossible to determine

in the absence of a detailed account of the proposed act. All of this points to the conclusion that the Director is entitled to take the

view that it is impracticable for him to give an undertaking in advance of the event that he will not prosecute.

96. Then there is the third issue, which is whether the means used to achieve the objective are proportionate. The object of

section 2(1) of the 1961 Act is to avoid an abuse which would put the lives of the weak and vulnerable at risk. In this way it seeks to

preserve life. I would be willing to give full weight to Mrs Pretty's assertion that she is not weak or vulnerable in this sense ­ that she


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della decisione della House of Lords inglese relativa al caso Pretty. I temi sono: suicidio assistito, eutanasia, dignità umana, interruzione della vita.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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