Purdy v. Director of Public Prosecutions [Divisional Court, October 29th, 2008]

By Philip Stenning

The Purdy application to the Divisional Court, which was rejected in its decision released on October 29th, has received a considerable amount of news coverage in recent weeks.

For the last 13 years, Debbie Purdy, who is now 45, has been suffering from primary progressive multiple sclerosis. This is a particularly aggressive form of the disease in which, unlike the more benign “relapse-remission” form of it under which people may live quite normal lives for many years, the sufferer never goes into remission - the disease just gets progressively worse until the person eventually becomes completely incapacitated and dies. Purdy’s illness is already quite far advanced, and she has been confined to a wheelchair for the last seven years. Progress of this disease is quite unpredictable, but it is quite possible that Purdy does not have many more years to live.

She has decided that she would like the option of “death with dignity” if her condition deteriorates to the point where she no longer has any real quality of life and experiences extreme pain or discomfort. But because of the nature of her disease, by the time that she gets to the stage at which she would wish to die rather than continue to live, she would almost certainly not be able to commit suicide unaided. While suicide is not illegal in the UK, aiding and abetting someone to commit suicide is (Section 2(1) of the Suicide Act, 1961). To fulfil her wishes at that point, therefore, she would need to go to a country like Switzerland in which “assisted suicide” is not illegal.

Purdy is concerned, however, that if she asks her husband to travel with her to Switzerland for an assisted suicide (an organisation called Dignitas provides this service there), and he goes with her and stays with her during the procedure, he may subsequently be prosecuted when he returns to the UK afterwards. The punishment prescribed in the Suicide Act for aiding and abetting suicide is a prison sentence of up to 14 years.

The Act requires the consent of the Director of public Prosecutions for such a prosecution, and the law requires the DPP to consider, in addition to whether there is sufficient evidence to justify a prosecution, whether such a prosecution would be “in the public interest”. Although the Code for Crown Prosecutors sets out general criteria for determining the public interest in making prosecutorial decisions, the DPP has not identified any specific criteria to govern the exercise of his discretion in giving or withholding consent for a prosecution under the Suicide Act (as he has done, for instance for prosecutions for domestic violence, football hooliganism, and some driving offences). So Purdy applied to the court for a declaration requiring the DPP to issue such guidelines, and in particular to provide some indication as to whether, if her husband merely accompanied her to Switzerland and held her hand while she died, he would be likely to be prosecuted. Evidence at the hearing indicated that in the last 6 years, “at least 90 United Kingdom citizens have travelled abroad for the purpose of lawfully obtaining an assisted suicide, but that in no single instance has a prosecution resulted, notwithstanding some investigations by police.”

The judgment of the court is quite technical (it included an appeal to provisions of the European Convention on Human Rights), but the bottom line of it is that the court held that it could not force the DPP to issue such guidelines, that the general guidelines in the Code for Crown Prosecutors are sufficient to ensure that the DPP’s decisions under the Suicide Act cannot and will not be “arbitrary”, and that it is only Parliament which has the authority to clarify the law in the way Purdy would like.

The law thus so far leaves people like Purdy with a really difficult dilemma, and she argues that it is discriminatory, in that it denies to people like her the right to self-determination (in this case, to choose the time and manner of her death, and to have her husband present with her at that time without fear that he will be punished afterwards - a risk she’s not prepared to take), which others who are able to commit suicide without assistance enjoy. In addition to addressing this substantive issue, the case also is an important decision with respect to the nature and scope of prosecutorial discretion in this country, and the extent to which courts are or are not prepared to intervene with respect to it.

The court gave Purdy permission to appeal its decision. But of course, even if she pursued such an appeal, she might not live long enough to benefit from a favourable outcome. Her only other recourse, it seems, would be to take her campaign to Parliament to try to persuade legislators to change the law in her favour. But that could well take more time than she has left too.

So do you think she’s received justice?

(If you’re interested, you can find the court’s decision in the Purdy case at www.bailii.org/ew/cases/EWHC/QB/2008/2565.html.)