The utter folly of the Lords (on assisted suicide)

In what will be one of the final decisions of the House of Lords in its judicial capacity before the new Supreme Court of the United Kingdom takes over, the Law Lords have overturned the decision of the lower courts in the case of Debbie Purdy (you can read the full decision of the court here). Briefly the facts are as follows. Mrs Purdy is suffering from multiple sclerosis and would like the option of killing herself with the assistance of others (probably by travelling to the so-called "Dignitas" slaughterhouse clinic in Switzerland). Under section 2(1) of the Suicide Act 1961, assisting suicide is a crime in England and Wales and subject to (up to) 14 years' imprisonment. But as a matter of law there is some uncertainty whether and to what extent this applies to conduct outside of England and Wales. And, more importantly, as the case revealed there is some possible tension (unresolved on the Lordships' analysis -- see this post for a good analysis of this point with which I am not really concerning myself here) between this and Article 8 of the European Convention on Human Rights (ECHR) which protects the right to private life.

Although Mrs Purdy "won" her case, it has not had the (direct) effect of legalising assisted suicide. As a matter of law that was not the case was about, although that is probably what she and those backing her were really seeking, and inevitably as these things go it may end up having precisely that effect (although George Pilcher seems to think it may have the opposite effect). But judges have to answer the legal questions set before them and not avoid answering them out of a sense of political expedience. The rule of law demands that much. But the rule of law does not require the court to answer every question put to it by the plaintiff (or applicant). If the law says it's not the task of the courts to answer such a question then the rule of law requires courts to keep silent and send the plaintiff packing. In the English way of doing law there is a general understanding that advisory opinions are not part of the judicial function (although this position is coming under increasing stress). So if, for example, Parliament passes an amendment to the tax laws and there is some room for doubt over its correct interpretation and I can see the tax authorities taking a different view of its meaning from what I myself would like it to mean then very obviously there is some advantage in my knowing in advance what construction the courts will adopt. Will the courts side with my interpretation of the law (according to which I'll pay less tax) or the tax authorities' interpretation (according to which I'll pay more tax)? I'd like to know so that I can start planning and structuring my assets and income in such a way as to minimise my tax bill. If the courts are going to side with the taxman's interpretation then I might want to start shifting my assets and income offshore. If not then I can leave them as is. However, the fact that courts may not give advisory opinions puts an end to this wishful thinking. In the absence of an actual dispute, courts will not make hypothetical rulings on a point of law. Generally speaking you can't (in England and Wales) just go to court and ask the court to clarify the law for you because you'd like to know what the courts would rule in a real live case. No, it is not the court's job to give legal advice. If you want legal advice then go and see a lawyer. If, however, there is a real case and the parties to a dispute think the law means different things then the court will have to give an interpretation on the meaning of the law. So if the taxman has calculated and sent you your tax bill for the year based on his interpretation of the law and you think that interpretation is wrong and that under your interpretation of the law you should pay a different (lesser) amount then you can go to court and get the court to authoritatively interpret the law. But not beforehand. Courts are not there to give out legal advice. They are there to settle real legal disputes.

So what does all this have to do with Mrs Purdy's case? Well at first glance there are some very worrying statements by the Law Lords. Take for instance Lord Phillips of Worth Matravers:

It must be emphasised at the outset that it is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament. No-one who listened to the recent debate in the House of Lords on Lord Falconer of Thoroton’s amendment to the Coroners and Justice Bill, in which he sought to define in law acts which were not capable of encouraging or assisting suicide, or has read the report of the debate in Hansard (HL Debates, vol 712, 7 July 2009, cols 595-634) can be in any doubt as to the strength of feeling on either side or the difficulties that such a change in the law might give rise to. We do not venture into that arena, nor would it be right for us to do so. Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it.

(R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 at [26] per Lord Phillips, emphasis added)

Well, yes that's their function if it's a necessary part of resolving an actual disputed claim of legal right. But no (and that's an emphatic no) it's not their function if it's a purely hypothetical situation we're talking about -- i.e. the applicant is asking for an advisory opinion. What crime has Mrs Purdy or one of her relations been accused of that would require the court to "clarify" the criminal law relating to assisted suicide? None. Neither Mrs Purdy nor any relation of hers has been accused of any crime. In such a case then you would think the courts would simply keep silent about the law relating to assisted suicide since it is not the function of English courts to give advisory opinions on the law. Now obviously if Mrs Purdy had already gone to Switzerland (as she is considering doing in the future), committed suicide with the assistance of others (including her husband in helping her travel to Switzerland) and her husband was then tried in England for assisting in her suicide then there would be a real live legal dispute involving actual rights in a concrete case. In that case the court would be required to say whether a crime had been committed (and thereby "clarify" the law in relation to the kind of conduct engaged in by the defendant). But short of that what role does the court have in "clarifying" the law on assisted suicide for the sake of would-be offenders such as the family members of Mrs Purdy (or the staff of the Dignitas clinic in Switzerland)? If Mrs Purdy and her relations are uncertain about the meaning of the law in relation to assisted suicide then they should go and see a lawyer and get some legal advice about their rights and obligations under the law.

At this stage we need to consider some fundamentals of the criminal law. In order for a defendant to be found guilty in a criminal case the there are (at least) two things that need to happen: the prosecution must (1) prove a certain set of facts beyond reasonable doubt and (2) show that that particular set of facts amounts to a crime under the law. Assuming the defendant wishes to controvert the prosecution's case (i.e. plead not guilty) the defendant can argue either (1) that the prosecution has not proved the alleged facts beyond reasonable doubt (i.e. dispute the prosecution's allegations of fact) or (2) regardless of whether the prosecution has proved the alleged facts beyond reasonable doubt, that they do not amount to a crime under the law (i.e. dispute the the prosecution's allegations of law). Most criminal trials are purely factual disputes. The meaning of the law of murder (say) is usually not in dispute. Here the defendant agrees with the prosecution that if someone did what the prosecution was alleging that he would be guilty of murder. Rather, what is in issue here is whether the accused did engage in the conduct as alleged. That is a purely factual dispute. No-one in the case disagrees as to what the law means in the alleged factual scenario. But sometimes legal disputes also arise where the the prosecution and the accused disagree whether a particular factual scenario (let's call it X) is against the law or not. Here the prosecution and the defendant do not agree on whether someone who engaged in the kind of conduct alleged by the prosecution would actually be guilty of a crime. And here it would be necessary for a court to "clarify" the criminal law. And what's more, it would entirely appropriate for the court to clarify the law in this kind of case since no merely hypothetical situation but a real live case.

At first glance, aspects of Mrs Purdy's case appear to fall into the category of a case where she seeking a merely advisory "clarification" of the law. She hasn't yet committed suicide or travelled to Switzerland for this purpose and for all we know it is possible that she never will (although she's on record as saying she wants the option of doing it in the future). Although she has not (yet -- so far as we know) engaged in any conduct that could be called criminal and has not been arrested and charged with a criminal offence she appears to be asking the court to "clarify" the criminal law for her sake. What makes her case different from the cases of all the other people out there thinking of engaging in conduct which may be criminal and which may attract the attention of the police and Director of Public Prosecutions (DPP)? Ignoring all the emotion about whether you think assisted suicide should be a criminal offence, the fact of the matter is that unless or until Parliament changes the law it is a criminal offence in England and Wales. There is no doubt that anyone who "assists" (whatever that means as a matter of law) someone commit suicide in those parts of Her Majesty's realms would be committing a crime pursuant to the provisions of the Suicide Act. Again, what is so special about Mrs Purdy's case that the court should break their silence and want to "clarify" the criminal law for someone who has not been charged with any crime?

In Mrs Purdy's case there is some doubt about whether a certain course of conduct she and her husband are contemplating committing in the future would amount to (a) the crime of murder, (b) the crime of assisting suicide or (c) no crime at all. Well if that is what she was asking then that would be a clear example of an English court being asked to give an advisory opinion in a hypothetical case. And that is something English courts do not do under the English understanding of judicial power. If you want this kind of legal advice then go and see a lawyer and plan your conduct on the basis of the advice he gives you as well as the risk that he is wrong in his advice.

Now it's important to stress that this is not what Mrs Purdy asked the court to do. I say all that by way of introduction to consideration of the point she did ask the court to consider. Her case was somewhat different in form but by a happy accident of the ECHR she came quite close to asking the court this -- and the court granted her request. Was it right to do so? Now rather than ask the court to rule on whether her planned course of future conduct would be criminal, what Mrs Purdy did was ask the court to force the DPP to reveal his hand and say under what circumstances he would bring prosecutions in cases involving the kind of (allegedly criminal) conduct Mrs Purdy and her husband were planning on engaging in. Their Lordships were unanimous in their answer. The distinction between asking the court to rule in advance of a potential crime whether the conduct is criminal and asking the court to force the DPP to say in advance of a crime whether he will bring a prosecution for this kind of conduct is an important one. Obviously there is a difference. But is it a difference worthy of their Lordships' answer? If it wasn't for Article 8 of the ECHR then in my view the answer would clearly be 'no'.

There have already been a number of instances of people from England and Wales travelling abroad to clinics such as Dignitas for the purposes of committing suicide. In several of these instances family members of the deceased have subsequently been questioned by police in a criminal investigation into whether they criminally assisted the suicide of the deceased. None of these cases has gone to trial. In several of them the DPP refused to bring a case on the basis of his opinion that there was insufficient evidence to secure a conviction. Without going into the details of the individual cases (which I do not know) that in theory is not objectionable. While public prosecutors have a duty to enforce the law, they also have a duty to do so responsibly by not bringing cases that they know will not succeed because there is insufficient evidence for the prosecution to prove the alleged criminal conduct beyond reasonable doubt. But in another high profile case the DPP decided not to prosecute on a very different ground. Here the stated basis was that prosecution would not be "in the public interest". This is a vague discretion that the DPP has (and some would argue that he should not have such a discretion) and like most discretionary powers is subject to the rules of administrative law which create various (vague?) rights in public law such as that the official upon whom the discretion is conferred must not use the discretion "unreasonably" or for an "improper purpose" (and several other limitations as well). And with the Human Rights Act 1998 now subjecting public authorities to the ECHR that provides another potential limitation on how the DPP can exercise his discretion.

Now in the case where the DPP decided not to prosecute on the basis of "public interest" the DPP published his reasons for his decision and they are available for anyone (including Mrs Purdy and her relations) to read. So the public can arguably draw its own conclusion as to whether he exercised this discretion "reasonably" or not. But his decision and the reasons he proffered were limited to that particular case and said nothing to other people contemplating this kind of conduct (such as Mrs Purdy and her relations).

Mrs Purdy's argument was that she had a right to know the kinds of circumstances in which the DPP would prosecute cases of assisting a suicide. Now her case was very closely tied to the rights granted under the ECHR and we will consider those later. But before we do let us consider the point more generally.

Strip this case of all the emotion generated by whether you think assisted suicide should be legal or illegal (and that is obviously a controversial question and one for Parliament -- although those who would rather we lived under a judicial dictatorship than a Parliamentary democracy human rights lawyers and judges may eventually have something to say on that particular question) and consider it from the angle of the existing criminal law and the deterrence effect of the criminal law. If, say, a frail elderly and impecunious woman is thinking of robbing a bank, committing fraud or even murdering her husband for the life insurance (conduct which is clearly illegal and should never be encouraged -- even in the case of frail, elderly and impecunious women) should she be told in advance by the DPP that she won't be prosecuted for her crimes if she commits them according to his stated guidelines of how to avoid prosecution? I certainly hope not! That is not the rule of law but a state of lawlessness. While there is room for having compassion on people after the event, if the criminal law is to do its job then you can't have the DPP go telling would-be criminals in advance of their crimes that they won't be prosecuted as long as they commit their crimes the "right" way (i.e. do it like this rather than that as I so helpfully lay out for all would-be offenders in my 73 point policy document on prosecution practice). And if that's not bad enough, the idea of a would-be offender going to court and arguing that she has a legal right to force the DPP to reveal his hand and tell her the circumstances under which she won't be prosecuted for her malefactions is simply risible.

Yet that is exactly what the Lords decided in what is potentially their last decision before their translation to the new and improved Supreme Laughing Stock Court of the United Kingdom. I cannot stress enough the enormity of the point. We have here a unanimous decision of the appellate division of the House of Lords ordering the DPP to tell would-be criminals the circumstances under which their allegedly criminal behaviour won't be prosecuted. That is a most perverse outcome. People planning on committing a crime should not have a legal "right" to be told in advance of their crime the circumstances under which they can avoid prosecution for criminal conduct. It undermines the entire deterrent effect of the criminal law. It is an abandonment of the rule of law for a state of lawlessness. If you know in advance of committing a crime that you're not going to be prosecuted then it's an open invitation to go out and commit it. It's as simple as that. The fact that some people in society happen to think (many rather strongly in fact) that assisted suicide should not be a crime is completely beside the point.

Now of course, the form the case took in law was an argument under the Human Rights Act and the ECHR. Does the ECHR require such utter folly on the part of judges? Well the unanimous decision of their Lordships is yes. The case involved an alleged breach of her "right" to respect to her "private life" under Article 8 of the ECHR (incorporated for some respects into English law by way of the Human Rights Act).

But, as we have seen, at least as a matter of principle this would appear to be folly. Telling would-be criminals the circumstances under which their criminal behaviour is to be prosecuted seems to undermine the rule of law and promote lawlessness. What right does her husband (the one who will be committing the crime) have to be told of the circumstances under which he can avoid prosecution for criminal behaviour? Well, thanks to New Labour's demolition job on the English constitution the Human Rights Act and some creative results-oriented jurisprudence in interpreting the rights of the ECHR such perversity is now a real possibility. "Public authorities" (of which the DPP is one) are subject to the ECHR. If the DPP was not subject to the strictures of Article 8 ECHR as a matter of English law (or if he was but the courts adopted a more sensible and faithful reading of Article 8 where the Suicide Act was not considered to touch on Art 8 rights) then it's unlikely the case could ever have taken the form it did. And while there's room for argument that the decision is right as a matter of law (although I would strongly dissent on this point and would refer you to the analysis of Head of Legal), as a matter of principle the decision is utterly perverse and that is what I am mainly concerned with in this post.

The context of Mrs Purdy's case is that because Mrs Purdy enjoys a right to terminate her life under Art 8(1) ECHR, Art 8(2) then limits the way in which the DPP can exercise his discretion to bring a prosecution for assisting a suicide. The Lords did not go so far as to say that Mrs Purdy has an absolute right to die when, where and how she likes and that the provisions of the Suicide Act which criminalise the assisting of suicide are thereby a violation of her convention right. Rather what it held was that the provisions of the Suicide Act are an interference with her right to die, that the state may only interfere with this right in accordance with the provisions of the ECHR and that the DPP's lack of a clear prosecution policy did not satisfy the burdens placed by the Convention on "public authorities" in this regard. That is the source of our would-be criminal's right to know instances of illegality which will not be prosecuted.

Consider what Article 8 ECHR says:

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 well-being 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.

There are several problems with the Lords' decision. First, Art 8(1) guarantees the right to respect for "private and family life, ... home and ... correspondence". Nowhere does it guarantee a right to death. In fact the House of Lords previously agreed (rather sensibly) with this interpretation in the case of Pretty v DPP [2001] UKHL 61 but this was overturned -- quite wrongly in my view -- by their Strasbourg masters in the case of Pretty v UK (2002) 35 EHRR 1. The European Court of Human Wrongs Rights has engaged in some blatant eisegesis here. The context of Art 8(1) is "private and family life", "home" and "correspondence". The juxtaposition of these terms would clearly suggest that this Article is concerned with intrusions of the state into the privacy of how their citizens live their lives. Nowhere does it grant, however, a right to non-state interference in terminating one's life and such an interpretation would have been far removed from the minds of those who originally drafted the ECHR. But these things tend to take on a life their own, aided by an army of human rights lawyers, and tyranny ensues. The second interesting point is that the conduct criminalised by the Suicide Act is not any conduct which can be permitted by Mrs Purdy herself. So what relevance does her convention right have to a crime committed by another person against her (say her husband)? On the court's view, even assuming Mrs Purdy has a "right" to end her life free of of state interference under Article 8(1) (which is highly dubious given the context and history of Art 8), criminalising the assistance of suicide does not deny her from exercising her "right" to kill herself. At most it impacts on her "right" to end her life in a particular way of her choosing -- viz. by asking someone else such as her husband to "assist" her. But again where does the "right" to private and family life, home and correspondence include a "right" to ask your husband to murder you (or assist you in murdering yourself which is effectively the same thing)? And arguably Article 2(1) on the right to life ("Everyone's right to life shall be protected by law") might have some bearing on this situation. A state could argue that since assisting suicide is a form of murder by the person assisting in the suicide that the criminalisation of this conduct is required under Article 2(1) ECHR to protect Mrs Purdy's life by law. Anyway that was not something the British Government tried to argue here (which is not surprising given its record or poorly arguing cases in Human Rights Act challenges)..

Now assuming that Mrs Purdy's Art 8(1) right to "respect for [her] private life" &c. does includes the right to terminate her life then Art 8(2) would seem to require that that right shall not be interfered with by a 'public authority' (of which the DPP is one) except (1) as is necessary in a democratic society "for the prevention of disorder or crime, for the protection of health or morals" &c and (2) in accordance with the law. No doubt the right-to-death industry would argue that the criminalisation of assisting suicide violates this first principle but the courts haven't gone so far as to hold that and probably wouldn't -- at least not yet. So the validity of the Suicide Act under the ECHR is not (yet) in question. And from a purely legal standpoint this arguably shows the greatest folly of their Lordships' decision (as I will now explain). It's one thing to argue that in criminalising the assisting of suicide section 2(1) of the Suicide Act improperly interferes with a person's Art 8(1) Convention right to terminate one's life ("improper" in the sense that although it was done "in accordance with the law" it was not "necessary in a democratic society ... 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"). But that wasn't the issue here. The case was not argued on the basis that s 2(1) of the Suicide Act was not necessary for the ends stated in Art 8(2) ECHR. The important point to grasp is this: once the British Parliament enacted section 2(1) of the Suicide Act in a manner consistent with its obligations under Art 8(2) then individuals no longer have the legal right under Art 8(1) to terminate their life with the assistance of others. Once you grasp this point it should be clear that the DPP's prosecution practice in relation to this criminal statute cannot be said to "interfere" with such a "right" for the simple reason that the "right" no longer exists in law. Any such right under Art 8 has already been abolished by Parliament in a manner completely consistent with the state's obligations under Art 8(2) ECHR. If section 2(1) of the Suicide Act is consistent with Art 8(1) ECHR (and the contrary was not argued in this case) then Mrs Purdy (and every other person subject to English law) no longer has any legal right under Art 8(1) ECHR to commit suicide with the assistance of another person. So as a matter of simple logic the DPP's conduct in bringing prosecutions (or not) under s 2(1) of the Suicide Act cannot be said to "interfere" with a person's Art 8(1) Convention right for the simple reason that such a right no longer exists in law. Mrs Purdy (and everyone else for that matter) no longer has a right under Art 8(1) with which the DPP's conduct in bringing a prosecution under s 2(1) of the Suicide Act could possible "interfere". And yet their Lordships unanimously held the opposite! Apparently the logically impossible is no hurdle too great for their Lordships.

Now having said that, the broad argument that there should be some consistency in the way the DPP brings prosecutions is a claim to which I am not entirely unsympathetic. Consistency in the law's application is a good end to aim at in a legal system. Prima facie the rule of law would require laws to be consistently applied. But as the above analysis has indicated that's not really what this case is about. I still find the whole case troublesome. Telling would-be criminals the circumstances under which they won't be prosecuted for their crimes seems perverse and a negation of the rule of law. Yes, the law in regard of assisted suicide in England is a bit of a mess. Or perhaps it would be more accurate to state that the application of the law in England is a bit if a mess. Ignoring the real legal dispute over whether, say, the Dignitas staff in Switzerland would be committing a crime under English law (and if so whether it is the crime of assisting suicide or murder), the law on assisting suicide in England and Wales is quite clear. Yet its enforcement isn't. For the most part this problem has arisen because the DPP has refused to do his job and bring prosecutions. If the DPP had been doing his job and consistently enforcing the law then arguably Mrs Purdy would not have been able to succeed in her claim under Art 8 ECHR.

The rule of law certainly requires that people such as Mrs Purdy and her husband be able to know what kind of conduct is criminal and to plan their lives accordingly. If a person in England or Wales is thinking of assisting someone travel to Switzerland to commit suicide then he should be able to find out in advance of that conduct if it is a crime against the laws of England and Wales. But Mrs Purdy and her family already have that opportunity. All they have to do is turn to section 2(1) of the Suicide Act 1961 (and possibly also the law on murder) for the answer to that question. It's right there in black and white for all the world to see and if she or anyone else is not sure about what it means or whether a precise factual scenario would likely offend against the law then she can go to a member of the legal profession for some professional advice.

What the rule of law does not require is for the DPP to tell would-be offenders whether he will prosecute them or whether they can commit a crime and not be prosecuted for it. Such a requirement would completely nullify the deterrent effect of the criminal law. And yet that is precisely what the House of Lords required of the DPP in the case of Mrs Purdy! Again, the mind boggles. Now, of course it was a slightly more sophisticated and intricate version of that point which entertained their Lordships' consideration. Mrs Purdy was not asking for a personal guarantee of immunity from prosecution and their Lordships were right to point out that that is not theirs (or the DPP's) to give. And nor was she claiming that all would-be criminals enjoy this right (just people like her who want to commit suicide and their friends and relatives who may assist them and thereby commit a criminal offence). What she was asking for was a precise formulation by the DPP as to when prosecutions would or would not be brought so that she and her aiders and abettors could then find an instance of otherwise criminal conduct which would not be prosecuted and then seek to commit exactly that kind of conduct and thereby evade prosecution for criminal behaviour.

In my view this is nothing short of an abuse of the court's power by Mrs Purdy and her legal advisors and an undermining of the rule of law by their Lordships. In a previous era Mrs Purdy and her lawyers would have been given short shrift for wasting the court's valuable time. Yet nowadays we encourage and label as virtuous exactly this kind of conduct by way of the Villains' Charter Human Rights Act of 1998.