Justifying an interference: the Article 8(2) requirements

Article 8(2) of the ECHR provides that ‘[tjhcre 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’ to secure one or more of the enumerated legitimate aims. As the ECtHR in Tysiac observed ‘[according to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and in particular that it is proportionate to one of the legitimate aims pursued by the authorities’.8 The courts have dedicated considerable time to clarifying the meaning of‘in accordance with the law’ and ‘necessary in a democratic society’.

‘In accordance with the law’

In the seminal decision of Sunday Times, the ECtHR characterised the requirement of being ‘in accordance with the law’ as comprising two elements:

Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate [their] conduct: [they] must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.9

Prosecuting an offence under s 2( 1) of the Suicide Act 1961 requires the consent of the DPP.10 This aspect of s 2 and, more specifically, the policy11 governing the exercise of the prosecutorial discretion, were considered in detail by the House of Lords in Purdy*2 and, again, in Nicklinson (insofar as the DPP’s appeal was concerned).13 At the time Purdy was decided, there was no specific policy governing the exercise of the discretion to prosecute an offence under s 2(1); the decision was made by reference to the generic principles of sufficient evidence and public interest.14 It was this lack of clarity as to the factors that were relevant to the decision to prosecute an offence under s 2 which was at the centre of Debbie Purdy’s challenge.15

The House of Lords accepted the submission made on behalf of Ms Purdy that ‘if the justification for a blanket ban depends upon the flexibility of its operation, it cannot be “in accordance with the law” unless there is greater clarity about the factors which the DPP and his subordinates will take into account in making their decisions’.16 Following the successful appeal in Purdy, the CPS developed a policy specific to prosecutions under s 2.17 The policy reiterates that neither list is exhaustive; each case must be considered on its own facts and its own merits. This residual discretion may, to a large extent, account for the fact that of the 162 cases recorded by police as assisted suicide and referred to the CPS for consideration between April 2009 and August 2020, 107 were not proceeded with by the CPS (i.e. 66 per cent) and 32 cases were withdrawn by police.18 And, of the post-policy cases that have been prosecuted under s 2, only three have been successful. As will be discussed below, the facts of the cases that have been successfully prosecuted vary considerably. In addition to the s 2 prosecutions, a small number of cases in which individuals who have engaged in what might otherwise be characterised as ‘mercy killings’ are prosecuted for other violent offences (for instance, manslaughter)19. The statistics made public by the CPS indicate that of the cases referred by police for consideration under s 2, nine have been referred onwards for prosecution for homicide or other serious crime. There is, however, no indication of the rate of successful prosecution of such offences, nor of the number (or nature) of the cases which were classified as homicide or other serious offences from the outset (i.e. not referred on from an initial s 2 referral by police).

In Nicklinson, the Supreme Court was faced with, inter alia, an appeal by the DPP against a decision of the Court of Appeal (by a 2:1 majority) that the post-Purdy policy was insufficiently clear in terms of the impact of the assister being a healthcare professional. More specifically, it was argued that whereas it was sufficiently clear how the DPP would approach a case in which a friend or family member assisted and all the factors tending against prosecution were present, it was far less clear how the DPP would approach the same case in circumstances where the assister was a healthcare professional, especially if the healthcare professional had not had a previous professional relationship with the person being assisted. The majority of the Court of Appeal held that the guidance did not permit ‘healthcare professionals to foresee to a reasonable degree the consequences of providing assistance’, whereas it was sufficiently clear when it came to relatives and close friends acting out of compassion.20

The Supreme Court unanimously upheld the DPP’s appeal (although for varying reasons).21 During the appeal, counsel for the DPP clarified the meaning

Right to choose when and how one dies 79 and intention of the fourteenth factor in favour of prosecution. More specifically, they confirmed that the qualifying phrase ‘and the victim was in his or her care’ applied to the entirety of the clause:

[FJactor fourteen was not intended to embrace healthcare professionals “brought in from outside, without previous influence or authority over the victim, or his family, for the simply [sic] purpose of assisting the suicide after the victim has reached his or her own settled decision to end life”.22

A majority of the Supreme Court considered that while it was not clear that the fourteenth factor had this significance, it was not the role of the Court to advise the DPP on what the policy should say. Instead, the majority determined to afford the DPP the opportunity to re-examine the policy in light of the arguments and concessions made during the appeal.23

The policy was amended following Nicklinson with the fourteenth factor being edited so that the words ‘and the victim was in his or her care’ arc now in bold and underlined. Additionally, a note was added to the policy stating:

For the avoidance of doubt the words ‘and the victim was in his or her care’ qualify all of the preceding parts of this paragraph [14]. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.24

Thus, the present iteration of the policy is in line with the dissenting judgment of the Lord Judge in the Court of Appeal who observed:

The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle ... are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve [their] desired suicide. The stranger who is brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the [spouse], would not attract a prosecution, seems to me most unlikely to be prosecuted ...25

The question arises whether this ‘clarification’ renders the policy more in line with the legality requirement of Article 8(2) or whether it poses more questions than it answers. According to Lord Sumption, the clarified interpretation raises significant concerns regarding the role of other factors favouring prosecution, in particular factor six (the accused was not ‘wholly motivated by compassion’). While the purely compassionate character of the assister’s motivation is a major head of mitigation, this is far more likely to be demonstrated by a family member or loved one, than by an outsider with no emotional or even a prior professional connection with the individual seeking assistance.26 Similar questions arise with respect to the interplay between factors fourteen and twelve (the ‘suspect’ and ‘victim’ were not known to each other). Those apparent inconsistencies pose but do not answer the questions: what kind of ‘professional carer with no earlier responsibility for the care of the victim’ is covered by the clarified factor fourteen? And how are persons who charge for their services affected by factor thirteen (which covers ‘profiteering’)? Finally, what sorts of conduct are covered by factor sixteen in light of the revised factor fourteen: does this only cover operations such as Dignitas or are less ‘extreme’ enterprises also caught?27 In the absence of information regarding the nature of the cases that are referred by the police but not prosecuted under s 2, it is impossible to ascertain whether any of the issues foreshadowed by his Lordship have arisen following the policy’s posi-Nicklinson ‘amendment’.

These ambiguities notwithstanding, the law arguably meets the certainty requirements to be ‘in accordance with the law’ as required by Article 8(2); citizens clearly know the legal rules applicable (i.e. s 2 of the Suicide Act 1961) and s 2 is plainly formulated with precision: intentional assistance and encouragement of another’s suicide is unlawful without exception. As the ECtHR has held, ‘absolute certainty’ is unattainable and the interpretation and application of many laws ‘is a question of practice’. Such is the case with s 2, as demonstrated by the ensuing analysis of the three post- Purdy prosecutions that have led to convictions.

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