(1) Pretty v. Director of Public Prosecutions [2001] 3 WLR 1598; [2002] 1 All ER 1; [2001] UKHL 61 (available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-1.htm.)Google Scholar

(2) Pretty v. United Kingdom, European Court of Human Rights, [Sect. 4], no. 2346/02, judgment of 29 April 2002. (Decision available at:http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=807092731&Notice=0&Noticemode=&RelatedMode=0).Google Scholar

(3) The discretion of the DPP to consent to a prosecution for the offence of assisting suicide is exercised pursuant to Section 2, Subsection 4 of the Suicide Act of 1961. Mrs. Pretty's solicitor had written to the DPP asking that an undertaking be given not to prosecute Mr. Pretty. In a letter of 8 August 2001 the DPP replied that: “[s]uccessive Directors – and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances.”Google Scholar

(4) Suicide itself is not a crime in English law. The criminal offence lies in assisting another. Section 2, Subsection 1 reads: “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.”Google Scholar

(5) See, generally, J. Wadham and H. Mountfield, Blackstone's Guide to the Human Rights Act 1998 (London: Blackstone Press, 1999).Google Scholar

(6) The orientation of Mrs. Pretty's case around an alleged violation of her Convention rights was of prime importance given that it was accepted on all sides that under the English common law Mrs. Pretty could not have succeeded. It is noted by Lord Bingham in the House of Lords that her claim was inconsistent with two fundamental principles of English law: first, the distinction between the lawful taking of one's own life by one's own act and the unlawful taking of life through the intervention of a third party (as per Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789, p. 831) and secondly, the distinction between the lawful cessation of life-saving or life-prolonging treatment and the unlawful taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life (as per Lord Donaldson MR in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, p. 46; and applied in Bland).Google Scholar

(7) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, para. 1.Google Scholar

(8) Ibid. The European Court's decision also goes some way towards recognising the sensitivity of assisted suicide as an ethical issue which has engaged public opinion and is vociferously contested on all sides, suggesting the need for rigorous democratic debate. Testimony to this is the fact that third-parties were given leave to intervene in the written procedure and the opposing views of the Voluntary Euthanasia Society and the Catholic Bishops’ Conference of England and Wales are set out in paras. 25-31 of the judgment. Like the House of Lords, the European Court made reference also to the report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I, 1994) and to the Parliamentary Assembly of the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and dying.Google Scholar

(9) SW v. United Kingdom and CR v. United Kingdom, nos. 20166/92 and 20190/92, judgments of 22 November 1995. In this pair of cases, dealing with the end of the marital rape exemption which had existed in the UK until the landmark decision of the House of Lords in R v. R [1991] 4 All ER 481, the European Court found that defendants convicted of the new offence could not rely on Article 7 of the Convention (the principle of non-retroactivity of the criminal law) in order to challenge their conviction as: ‘(…) the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity (…) above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom' (paras. 44 and 42 respectively).Google Scholar

(10) Oliver, D., Common Values and the Public-Private Divide London: Butterworths, 1999. On dignity as a legal value, see also D. Feldman, “Human Dignity as a Legal Value – Part I” [1999] PL 682-702; D. Feldman, “Human Dignity as a Legal Value – Part II” [2000] PL 61-76. Securing respect for dignity via the English common law is by way of contrast to the approach adopted in many other European countries where human dignity is specifically guaranteed in the Constitution. See, for example, Article 1(1) of the German Basic Law of 1949: “Human dignity is inviolable. To respect and protect it is the duty of all state authority.” (Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.); Article 3(1) of the Italian Constitution of 1947: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions.” (Tutti i cittadini hanno pari dignità sociale e sono eguali davanti alla legge, senza distinzioni di sesso, di razza, di lingua, di religione, di opinioni politiche, di condizioni personali e sociali.); and the decision of the French Constitutional Council no. 94-343-344 DC of 27 July 1994 Bioethics which lifted the principle of safeguarding human dignity from an interpretative reading of the preamble to the Constitution of 1946 (Au lendemain de la victoire remportée par les peuples libres sur les régimes qui ont tenté d'asservir et de dégrader la personne humaine, le peuple français proclame à nouveau que tout ětre humain, sans distinction de race, de religion ni de croyance, possède des droits inaliénables et sacrés.) (Decision available at: http://www.conseil-constitutionnel.fr/decision/1994/94343dc.htm).Google Scholar

(11) This guarantee is subject to a number of limited exceptions set out in the second paragraph of Article 2, none of which applied in Mrs. Pretty's case.Google Scholar

(12) As, for example, in Keenan v. United Kingdom [Sect. 3], no. 27229/95, judgment of 3 April 2001) where it was found that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life.Google Scholar

(13) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, paras. 5 & 7.Google Scholar

(14) Pretty v. United Kingdom, supra n. 1, para. 39.Google Scholar

(15) For example, in the case of Kudla v. Poland [Grand Chamber], no. 30210/96, judgment of 26 October 2000, para. 94, it is stated that “under this provision [Article 3] the state must ensure that a person is detained in conditions which are compatible with respect for his human dignity…”. Of incidental note too is the neat link made between respect for dignity and the avoidance of degradation which underpinned the French Constitutional Council's Bioethics decision no. 94-343-344 DC of 27 July 1994 in which safeguarding human dignity is interpreted as an objective of the preamble to the Constitution of 1946 set in place in order to counter those past regimes whose effect was to “dégrader la personne humaine.” See, supra n. 10.Google Scholar

(16) Such as, for example, the state's obligations to protect the life and health of a person in custody (<=“” kingdom,=“” v.united=“”> n. 12); to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals (as in A v. United Kingdom, no. 25599/94, judgment of 23 September 1998, where a nine year-old boy had been repeatedly beaten by his mother's partner); and not to take direct action in relation to an individual which would involve the infliction of proscribed treatment upon him or her (as in D v. United Kingdom, no. 30240/96, judgment of 2 May 1997, in which an AIDS sufferer was threatened with removal from the UK to St Kitts where no effective medical or palliative treatment was available thus exposing the victim to a distressing death).+n.+12);+to+ensure+that+individuals+are+not+subjected+to+proscribed+treatment+at+the+hands+of+private+individuals+(as+in+A+v.+United+Kingdom,+no.+25599/94,+judgment+of+23+September+1998,+where+a+nine+year-old+boy+had+been+repeatedly+beaten+by+his+mother's+partner);+and+not+to+take+direct+action+in+relation+to+an+individual+which+would+involve+the+infliction+of+proscribed+treatment+upon+him+or+her+(as+in+D+v.+United+Kingdom,+no.+30240/96,+judgment+of+2+May+1997,+in+which+an+AIDS+sufferer+was+threatened+with+removal+from+the+UK+to+St+Kitts+where+no+effective+medical+or+palliative+treatment+was+available+thus+exposing+the+victim+to+a+distressing+death).>Google Scholar

(17) Pretty v. United Kingdom, supra n. 1, para. 54.Google Scholar

(18) X and Y v. The Netherlands, no. 8978/80, judgment of 26 March 1985.Google Scholar

(19) Milulic v. Croatia, [Sect. 1], no. 53176/99, judgment of 7 February 2002.Google Scholar

(20) B v. France, no. 133431/87, judgment of 25 March 1992.Google Scholar

(21) Dudgeon v. United Kingdom, no, 75251/76, judgment of 22 October 1991.Google Scholar

(22) Pretty v. United Kingdom, supra n. 1, para. 65.Google Scholar

(23) Ibid.Google Scholar

(24) Rodriguez v. The Attorney General of Canada [1994] 2 LRC 136. The majority of the Supreme Court found that the prohibition on Mrs. Rodriguez from receiving assistance in suicide contributed to her distress and prevented her from managing her death, thus depriving her of autonomy under Section 7 of the Canadian Charter of Rights and Freedoms. This depravation was not, however, found to contravene the principles of fundamental justice (such as protecting life and preventing abuse of the vulnerable), which, on the facts, outweighed the interference in the Section 7 right.Google Scholar

(25) The idea of “bringing rights home” is reflected in the title of the Government's White Paper introducing the Human Rights Bill: Rights Brought Home: The Human Rights Bill, Cm 3782, 1997.Google Scholar

(26) The consideration given to extraterritorial precedent by the House of Lords and the European Court of Human Rights may be viewed as part of a growing trend towards the citation of international and foreign legal sources by domestic courts in their resolution of constitutional and human rights issues. See, for example, the US Supreme Court's reference to the position taken by the ‘world community’ regarding the execution of the mentally retarded in Atkins v. Virginia 122 S.Ct. 2242, 2249, fn.21 (2002), and Section 39, para. 1 of the South African Constituion 1996, subsections (b) and (c) of which permit the South African judiciary to consider international and foreign law in the interpretation of any of the fundamental rights guaranteed in the Constitution (see further H. Mostert, Does German Law Still Matter? A Few Remarks about the Relevance of Foreign Law in General and German Law in Particular in South African Legal Development with Regard to the Issue of Constructive Expropriation, 3 GLJ No. 9, Sept. 2002, Public Law).Google Scholar

(27) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, para. 23.Google Scholar

(28) Dudgeon v. United Kingdom, supra n. 21, para. 43.Google Scholar

(29) Pretty v. United Kingdom, supra n. 1, para. 82.Google Scholar

(30) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, para. 31.Google Scholar

(31) Thlimmenos v. Greece [Grand Chamber], no. 34369/97, judgment of 6 April 2000.Google Scholar

(32) Ms B v. An NHS Hospital Trust judgment of 22 March 2002 (HC, Fam Div).Google Scholar

(33) Airdale NHS Trust v. Bland [1993] AC 789. The Bland decision clearly establishes that an individual may refuse or accept life-prolonging or life-preserving treatment and that the principle of self-determination requires that respect must be given to the wishes of the patient so that where treatment is refused, however unreasonable, this refusal must be respected even if the doctors do not consider that this is in the patient's best interests. As Lord Goff stated in this case (p. 864): “the principle of the sanctity of human life must yield to the principle of self-determination…”Google Scholar

(34) In giving weight to personal autonomy in this case, and declining to advance a more collective, paternalistic, vision of best interests Dame Butler-Sloss P. stated that: “a seriously disabled patient has the same rights as the fit person to respect for personal autonomy. There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient.” (Ms B v. An NHS Hospital Trust, supra n. 32, para. 94).Google Scholar

(35) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, para. 35.Google Scholar

(36) R v. Brown [1993] 2 All ER 75 (HL); Laskey, Jaggard and Brown v. United Kingdom, nos. 21627/93, 21826/93, 21974/93, judgment of 19 February 1997 (ECtHR).Google Scholar

(37) Pretty v. Director of Public Prosecutions, supra n. 2, per Lord Bingham, para. 36.Google Scholar

(38) Pretty v. United Kingdom, supra n. 1, para. 89.Google Scholar

(39) The paternalistic dimension to ensuring respect for human dignity is visible in the concept's development in other European jurisdictions, especially in France where, for example, it has been invoked to enable public authorities to prevent spectacles, such as dwarf-throwing competitions in the name of respecting the dignity of willing participants, spectators and the dwarf community as a whole (see S. Millns, “Dwarf-throwing and Human Dignity: A French Perspective”, CE décisions du 27 octobre 1995, Ville d'Aix-en-Provence, Commune de Morsang-Sur-Orge, (1996) 18/3 JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 375-380). The use of human dignity in this collectivist fashion constitutes a clear interference with individual personal autonomy and freedom of choice and has been described as allied to ‘a form of legal moralism which treats autonomy as an aspect of human dignity but one which can be overriden by reference to the need to maintain respect for the dignity of whole human societies and the human race.’ (D. Feldman, supra n. 10, p. 702.)Google Scholar

(40) HL Paper 21-I, 1994, para. 237.Google Scholar

(41) Pretty v. Director of Public Prosecutions, supra n. 2, para. 1. By way of contrast to the picture drawn of Mrs. Pretty's supportive family network is the description of Ms B who had no supportive family and expressed concern that, were she forced to continue to receive medical treatment, she may find herself on her own with carers or in a nursing home (Ms B v. An NHS Hospital Trust, supra n. 32, para. 61).Google Scholar

(42) Biggs, H., “I Don't Want to be a Burden! A Feminist Reflects on Women's Experiences of Death and Dying,” in Sheldon S. and Thomson M. (eds.) Feminist Perspectives on Health Care Law (London: Cavendish Publishing, 1998) pp. 279–295.Google Scholar

(43) Biggs, H., ibid., p.295.Google Scholar

(44) Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 (available at http://www.minbuza.nl/english/Content.asp?Key=416729&Pad=257570,257588,257609,405188). Under Dutch Law assisted suicide and euthanasia are still criminal offences but may be decriminalised in certain circumstances at the patient's request subject to a number of ‘due care criteria’ or safeguards which, if not respected, will result in a prosecution of the assisting physician.Google Scholar