Background to the proportionality analysis under Article 8(2): Pretty and Nicklinson

As discussed in chapter 3, Diane Pretty – who suffered from motor neurone disease – sought an assurance from the DPP that he would not prosecute her husband for assisting her suicide, which was refused on the basis that he had no power to give such an undertaking. Pretty

based her claim for judicial review of his refusal upon several of her Convention rights (discussed in 3.4.2-3.4.3) under the HRA 1998. She also argued that if the DPP was not required to issue an assurance then s2(1) Suicide Act 1961 should be declared incompatible with her Convention rights (under s4 HRA).⁸⁷ The Home Secretary intervened as an interested party to defend the compatibility of the scheme. Pretty’s Convention rights, including Article 8(1), were not found to be engaged. It is useful to consider the reasons for this finding briefly since they illuminate the English judicial approach to the Convention right to dignified suicide and to the sanctity of life principle prior to Purdy. However, it must be emphasised that the contrary finding by the House of Lords in Purdy,⁸⁸ based on Pretty’s application to the ECtHR in Pretty v UK,⁸⁹ confirmed that Article 8(1) is engaged (overturning the House of Lord’s finding in Pretty).

Lord Bingham, giving the lead judgment in Pretty v DPP, did not accept that Pretty’s Article 8(1) right was protected. He agreed with the Secretary of State’s argument that:

…the right to private life relates to the manner in which a person conducts his life, not the manner he departs from it, although it includes the right to refuse treatment… [a]ny attempt to establish a right to die founders on the same objection as the attempt based on article 2: that the alleged right would extinguish the benefit on which it was supposedly based.⁹⁰

Lord Hope confirmed that ‘private life’ in Article 8(1) should be understood to refer to the way in which a person lives, rather than the way in which he dies, and therefore, while the way in which the ‘closing moments’ of life are experienced is within the Article 8 right to private life, he did not accept that Article 8(1) could encompass an obligation to give effect to her wish to undergo assisted suicide.⁹¹Their Lordships confirmed the status of the sanctity of life principle in English law and its incompatibility with recognition of a right to assisted suicide under Article 8(1). It was argued that the principle was firmly established, since the

87R (Pretty) v DPP [2001] UKHL 61 [1-2].

88R (Purdy) v DPP [2009] UKHL 45.

89Pretty v UK (2002) 35 EHRR 1.

90R (Pretty) v DPP [2001] UKHL 61 [23].

91R (Pretty) v DPP [2001] UKHL 61 [100].

only ‘exceptions’ to this principle arose due to the doctrine of double effect and refusal of withdrawal of treatment, as discussed above (see 6.2).⁹² Lord Hobhouse in particular stridently defended the sanctity of life principle as embedded in English criminal law and as opposing assisted suicide.⁹³ The findings of the House of Lords on Article 8(2) were therefore intended merely to offer completeness in response to Pretty’s arguments, rather than addressing the demands of necessity and proportionality in depth.

The Secretary of State’s argument as regards Article 8(2) was that the infringement of Pretty’s potential Article 8 right must be balanced against the protection of the ‘rights of others’⁹⁴and that the possible risk to the ‘vulnerable’ was sufficient to restrict Pretty’s Article 8(1) right.⁹⁵ The House of Lords confirmed the findings of the trial judge, Tuckey LJ, as regards Article 8(2). Tuckey LJ viewed the relevant legal materials as inconclusive, referring to the Canadian Supreme Court case of Rodriguez⁹⁶ in which Lamer CJ suggested a number of criteria to distinguish between different suicidal persons⁹⁷ but which were not accepted by the other Justices due to the risk of abuses (a point also made by Lord Sumption in Nicklinson).⁹⁸ The Court further did not find conclusive support in laws addressing assisted suicide in other nations. Lord Mance in Nicklinson, referring to the modern Supreme Court of British Columbia in Carter⁹⁹ later echoed Tuckey LJ’s finding as regards a judicial procedure, as discussed below (see 6.7).¹⁰⁰ Tuckey LJ raised concerns about the defensibility of a criterion limiting applications for assisted suicide to individuals suffering from terminal illness, on the basis that so doing would create arbitrariness as to the justifying basis of self-determination, implying that a slippery slope towards a wider availability of assisted suicide,

92R (Pretty) v DPP [2001] UKHL 61 [55] per Lord Steyn.

93R (Pretty) v DPP [2001] UKHL 61 [111].

94R (Pretty) v DPP [2001] UKHL 61.

95R (Pretty) v DPP [2001] UKHL 61 (HL) [55-62].

96Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519.

97 Ibid, 579; the criteria are as follows: (1) an application to a superior court; (2) evidence from a treating physician and independent psychiatrist that the applicant was competent and had made the decision freely and voluntarily, and one of the physicians must be present when the applicant committed suicide; (3) the physicians must also certify that she is and will become physically unable to commit suicide without help and that she knows and understands her continuing right to change her mind; (4) notice and access must be given to the regional coroner; (5) the applicant must be examined daily by one of the certifying physicians; (6) the permission would expire within 30 days; and (7) the act causing death must be that of the applicant herself and no-one else.

or even euthanasia, would be a possibility.¹⁰¹ As indicated, these issues were re-raised in the Nicklinson case more than a decade later; however, in that case it was undisputed that the claims engaged the Article 8(1) right of the suicidal claimants, since the validity of such a right had been confirmed in Purdy.¹⁰²

In the Nicklinson case the Supreme Court faced claims from two applicants as to the compatibility of the Suicide Act s2(1) scheme described above with the applicants’ Article 8 right to dignified suicide as it applied in their situations. Those applicants were Mrs Nicklinson and Paul Lamb. Mrs Nicklinson was putting the argument on behalf of her deceased husband Tony Nicklinson.¹⁰³ The situation of the late Tony Nicklinson was essentially the same as that of Paul Lamb, described in full above (see 6.3). When Nicklinson was litigated before the Divisional Court, Macur J found that a proportionality analysis could not be conducted by the Court since the issues of evidence and principle raised were a matter for Parliament and, furthermore, that he was bound by the prior House of Lords decision in Pretty as regards proportionality (despite the fact that Nicklinson’s Article 8(1) right was found to be engaged).¹⁰⁴ These findings, and the death of Tony Nicklinson to which they related, undermined the proportionality analysis that was ultimately addressed by the Supreme Court. Nevertheless, the findings in Nicklinson as regards proportionality are extremely significant for future claims, since a significant degree of judicial support was found for a declaration of incompatibility between the Article 8 rights of such claimants and s2(1) of the Suicide Act 1961.