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|Judgments - R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)
HOUSE OF LORDS
 UKHL 45
on appeal from: EWCA Civ 92
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Lord Pannick QC
(Instructed by Bindmans LLP)
Interveners (Society for the Protection of Unborn Children)
(Instructed by Penningtons)
David Perry QC
Dinah Rose QC
(Instructed by Teeasury Solicitors)
2 JUNE 2009
THURSDAY 30 JULY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)
 UKHL 45
LORD PHILLIPS OF WORTH MATRAVERS
1. I have had the advantage of reading in draft the opinions of each of the members of the Committee. I agree for the reasons that are common to all of them that this appeal should be allowed and that the Respondent should be required to promulgate a policy with the features described in the final paragraph of the draft opinion of my noble and learned friend, Lord Hope of Craighead. That opinion also addresses the question of whether acts in this jurisdiction that assist a person to travel to Switzerland for the purpose of there committing suicide fall within the scope of section 2(1) of the Suicide Act 1961 (the 1961 Act). Lord Hope approaches that question on the premise that section 2(1) created a new offence that was sui generis and applies to it recent jurisprudence in relation to territorial jurisdiction over criminal offences. On the basis of this and for additional reasons that reflect a purposive approach to the subsection, he gives an affirmative answer to that question.
2. It is, as Lord Hope observes, enough for the purposes of this appeal that the answer to the question should be in doubt. No argument has been placed before the House to challenge Lord Hopes conclusion. I consider it better that the question should not be resolved unless and until it falls for determination in the context of a prosecution. I say this because I do not approach the question in the same way as Lord Hope and have reached some provisional conclusions that do not reflect any of the submissions that have been placed before the House.
3. Before the 1961 Act it was unquestionably a criminal offence to aid, abet, counsel or procure (assist) the commission of suicide where both the relevant conduct and the act of suicide occurred within England and Wales. Whether it was an offence when the conduct or the suicide occurred outside the jurisdiction is a question that I am about to consider. In my view there is a strong presumption that the offence created by section 2(1) of the 1961 Act was intended to ensure that, in those circumstances where committing suicide and the attempt to do so were decriminalised by section 1, assisting suicide remained a criminal offence. It seems unlikely that Parliament intended, in an Act whose primary purpose was to decriminalise suicide and attempted suicide, to widen the scope of the offence of assisting suicide.
4. The 12th Edition (2008) of Smith and Hogan on Criminal Law comments at 126.96.36.199 in relation to section 2(1) of the 1961 Act that The words aids, abets, counsels or procures are those used to define secondary participation in crime but here they are used to define the principal offence. The interpretation of the words should be the same". I agree.
5. What was the position before 1961? I will go back a further century to the position before legislation of some relevance to which I shall refer in 1861. Suicide was a felony, being regarded as self-murder (felonia de se). For this reason the property of a person who committed suicide was forfeited. Attempted suicide was, as was an attempt to commit any other felony, a misdemeanour. A person who was present at the suicide of another and who assisted or encouraged the suicide, was guilty of murder as a principal in the second degree, and this applied equally where that person was the survivor of a suicide pact - Rex v Dyson (1823) Russ. & Ry 523; R v Croft  KB 295.
6. A person who encouraged or assisted another to commit suicide but who was not present when the suicide was committed was, in theory, an accessory before the fact to the suicide. Such a person could not, however, be prosecuted under the common law because of the rule that an accessory before the fact to a felony could only be prosecuted once the principal offender had been prosecuted to conviction - R v Russell (1832) 1 Mood 356; R v Croft.
7. Section 1 of the Accessories and Abettors Act 1861 provided:
Whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted and punished in all respects as if he were a principal felon".
Thereafter an accessory before the fact to suicide could be tried for murder - R v Croft.
8. Section 4(1) of the Homicide Act 1957 provided that
It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person.
Subject to this, assisting suicide, whether as a principal in the second degree or as an accessory before the fact, remained murder.
9. As a general rule English criminal law does not extend to acts committed outside the jurisdiction: Cox v Army Council  AC 48 at p. 67; Treacy v DPP  AC 537 at pp. 552-553. From at least the time of Henry VIII, however, murder has been recognised as an exception to this general rule. Section 9 of the Offences against the Person Act 1861 provides:
Where any Murder or Manslaughter shall be committed on Land out of the United Kingdom, whether within the Queens Dominions or without, and whether the Person killed were a Subject of Her Majesty or not, every Offence committed by any Subject of Her Majesty, in respect of any such Case, whether the same shall amount to the Offence of Murder or of Manslaughter, or of being accessory to Murder or Manslaughter, may be dealt with, inquired of, tried, determined, and punished in any County or Place in England or Ireland in which such Person shall be apprehended or be in Custody, in the same Manner in all respects as if such Offence had been actually committed in that County or Place;
10. It would appear to follow that, prior to the 1961 Act, a person who assisted another to commit suicide abroad, whether the assistance took place within this jurisdiction or outside it, was guilty of murder and could be tried for that offence in England.
11. The 1961 Act provides by section 3(3) This Act shall extend to England and Wales only". The ambit of section 2(1) should logically, in my view, be the same as the ambit of section 1. Plainly suicide ceases to be an offence when committed in England and Wales. It follows that assisting suicide, when the act of assisting and the act of suicide take place within England and Wales, is an offence under section 2(1).
12. It is equally plain that section 1 does not apply to suicide committed outside England and Wales. If that falls to be treated as murder, so that assisting it is also murder, it would seem to follow that if a British subject accompanies a relative, who is also a British subject, to Switzerland and assists in Switzerland the relative to commit suicide with help from Dignitas, that person will under English law commit the crime of murder and will be subject to the jurisdiction of the courts of England and Wales in relation to that offence.
13. It must be a moot point whether, in respect of acts of assistance that take place in this jurisdiction in relation to suicide that takes place in Switzerland, section 2(1) applies so as to reduce the offence from murder to one under section 2(1). Logically it seems to me that it should not, but plainly considerations of legislative policy would weigh the other way.
14. Is there any escape from these conclusions, which may not have been appreciated by those who drafted the 1961 Act? A possible avenue would be a finding that, for the purposes of section 9 of the Offences against the Person Act 1861, suicide is not to be treated as murder, so that assisting suicide abroad is not to be treated as murder falling within section 9. So far as I have been able to ascertain there has never been a prosecution for assisting a suicide that has taken place outside the jurisdiction. Support for excluding suicide from the ambit of section 9 of the 1861 Act might be gained from a decision, soon after the Act came into force, in relation to the meaning of murder where that word appeared in section 15 of the same Act. Sections 11, 12, 13 and 14 of the Act provided that a number of different methods of attempting to commit murder were to be felonies. Section 15 provided:
Whosoever shall, by any Means other than those specified in any of the preceding Sections of this Act, attempt to commit Murder, shall be guilty of Felony.
15. In R v Burgess (1862) Le. & Ca. 257 one of the Crown Cases Reserved raised the question of whether section 15 applied in the case of a woman who had tried to commit suicide, with the effect that her offence was a felony, rather than a misdemeanour that fell within the jurisdiction of the Quarter Sessions. Pollock CB, giving the judgment of the court, held at p. 262:
We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death.
16. The reasoning appears to have been no more than the application of robust common sense. Whether a similar approach would enable the court to escape the provisional conclusions that I have reached and, if so, the effect that this would have on the ambit of section 2(1) of the 1961 Act are questions that I would leave unresolved. The uncertainty is a further reason for the need for a more specific published policy on the part of the Director.
LORD HOPE OF CRAIGHEAD
17. The position in which Ms Purdy finds herself can be stated very simply. She suffers from primary progressive multiple sclerosis for which there is no known cure. It was diagnosed in 1995, and it is progressing. By 2001 she was permanently using a self-propelling wheelchair. Since then her condition has deteriorated still further. She now needs an electric wheelchair, and she has lost the ability to carry out many basic tasks for herself. She has problems in swallowing and has choking fits when she drinks. Further deterioration in her condition is inevitable. She expects that there will come a time when her continuing existence will become unbearable. When that happens she will wish to end her life while she is still physically able to do so. But by that stage she will be unable to do this without assistance. So she will want to travel to a country where assisted suicide is lawful, probably Switzerland. Her husband, Mr Omar Puente, is willing to help her to make this journey.
The risk of prosecution
18. Assisting a person to commit suicide is a crime in this country. Section 2(1) of the Suicide Act 1961 provides:
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.
As Lord Judge CJ said in the Court of Appeal, this provision is clear and unequivocal:  EWCA Civ 92, para 2. The offence which it describes is an offence in itself. It is not ancillary to anything else. Its language suggests that it applies to any acts of the kind it describes that are performed within this jurisdiction, irrespective of where the final act of suicide is to be committed. So acts which help another person to make a journey to another country, in the knowledge that its purpose is to enable the person to end her own life there, are within its reach. Its application cannot be avoided by arranging for the final act of suicide to be performed on the high seas, for example, or in Scotland. Otherwise it would be all too easy to exclude the vulnerable or the easily led from its protection. Furthermore it does not permit of any exceptions.
19. In his article Suicide in Switzerland: Complicity in England?  Crim L R 335 Professor Michael Hirst has suggested that it is not an offence for a person to do acts in England and Wales which aid or abet a suicide by someone else which subsequently takes place in a jurisdiction where suicide is lawful. As he points out, no prosecution has ever been brought under section 2(1) in circumstances such as those which Ms Purdy contemplates. He contends that no such prosecution could ever succeed, as her suicide would itself have to occur within the jurisdiction in order for any offence to be committed by the person who assisted her. The parties had not had an opportunity to consider this point before the commencement of the oral hearing, so they were invited to deal with it in written submissions. The views of the Attorney General were also invited. The further submissions which have been lodged by the Director of Public Prosecutions represent the agreed position of the Law Officers.
20. As the Law Officers point out, the construction of section 2(1) of the 1961 Act which Professor Hirst advances is based on what Professor Glanville Williams described as the terminatory theory of territorial jurisdiction: Venue and the Ambit of the Criminal Law (1965) 81 LQR 518, 519. According to this theory jurisdiction to try the offence is established in the country in which it is completed. The alternative theory, which Professor Glanville Williams called the initiatory theory, is that jurisdiction is established in the country where the offence is commenced. He was of the opinion that, although some of the earlier cases seemed to adopt the initiatory theory, the current of authority in 1965 was set against it. Writing in 1972 however Lynden Hall said that there was no hard and fast principle which required the courts to apply the terminatory theory: Territorial Jurisdiction and the Criminal Law:  Crim L R 276. As he points out, the courts had as a rule assumed jurisdiction where the last necessary element occurred in England. But to admit this by no means leads inescapably to the conclusion that a crime must be committed where and only where the last necessary element occurs.
21. In Libman v The Queen (1985) 21 DLR (4th) 174 La Forest J examined the English case law on this subject. In Liangsiriprasert (Somchai) v Government of the United States of America  1 AC 225, 250 Lord Griffiths described this as a most valuable analysis. As La Forest J points out, it reveals a number of different approaches. I do not think that it is necessary, for present purposes, to do more than pick out one or two of the main highlights. On the one hand there are cases where it was held that the offence was committed where the gravamen of the offence occurred. In R v Harden  1 QB 8 a conviction for the offence of obtaining property by false pretences was quashed because the property was obtained in Jersey. On the other there are cases where the courts have assumed jurisdiction where acts that formed part of a continuous transaction began in another country but were still in existence when the accused came to England. In R v Doot  AC 807, where the defendants were charged with conspiracy to import dangerous drugs into the United Kingdom, Lord Wilberforce pointed out at p 817 that there could be no breach of any rules of international law if the defendants were prosecuted in this country as under the territorial principle the courts of this country have a clear right, if not a duty, to prosecute in accordance with our municipal law:
The position as it is under international law is not, however, determinative of the question whether, under our municipal law, the acts committed amount to a crime. That has to be decided on different principles. If conspiracy to import drugs were a statutory offence, the question whether foreign conspiracies were included would be decided upon the terms of the statute. Since it is (if at all) a common law offence, this question must be decided upon principle and authority.
In the search for a principle, he said, the requirement of territoriality did not, in itself, provide an answer. But a legal principle which enabled concerting law breakers to escape a conspiracy charge by crossing the Channel before making their agreement, by bringing forward arguments about the location of their agreement which had no compensating merit, was not one that he would endorse. Clements v HM Advocate 1991 SLT 388, where acts of being concerned in the supply of a controlled drug which took place in England were treated as justiciable in Scotland where the drugs were to be supplied, is a further illustration of this approach.
22. In Treacy v Director of Public Prosecutions  AC 537 the appellants appeal against his conviction on a charge of blackmail, where his letter demanding money with menaces was posted in England to a recipient in West Germany, was dismissed. Lord Diplock said at pp 561-562:
There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom and so owe local obedience to our law, from doing physical acts in England notwithstanding that the effects of those acts take place outside the United Kingdom.
He added that it would savour of chauvinism rather than comity to treat prohibited acts which were of a kind calculated to cause harm to private individuals as excusable merely on the ground that the victim was not in the United Kingdom but in some other state. In R v Smith (Wallace Duncan)  2 Cr App R 1 an appeal against a conviction in this jurisdiction of obtaining by deception property which was in New York was dismissed on the ground that substantial activities constituting the crime had taken place here and there were no reasons of international comity why it should not be tried in this country. In R v Manning  QB 980 the Court of Appeal disagreed with that decision and held, following R v Harden  1 QB 8 that the last act or terminatory theory of jurisdiction was the common law of England and Wales. But in R v Smith (Wallace Duncan) (No 4)  QB 1418 the conflict between those cases was resolved in favour of a more flexible approach which enabled the courts to assume jurisdiction to try an offence if a substantial part of it took place within the jurisdiction, provided that there was no reason of international comity why the court should not do so. On 21 June 2004 an Appeal Committee dismissed the appellants petition for leave to appeal to the House of Lords.
23. Professor Hirst suggests that the decision in R v Smith (Wallace Duncan) (No 4)  QB 1418 complicates the position and that, even if it is held to prevail over R v Manning  QB 980, it may not necessarily resolve the issue in a case of assisting suicide. This is because the commission of the relevant act in England does not necessarily bring an offence within the ambit of English law. He reaches this conclusion because, in his opinion, the terminatory principle applies to acts of complicity, because secondary participation in crime is derivative in the sense that it depends on the liability of a principal offender and because there is nothing in the drafting of section 2(1) to suggest that it was intended to apply to complicity in extraterritorial suicides. I would not accept any of these arguments. As I said in para , the language of the subsection suggests that it applies to any acts of the kind it describes that are performed within this jurisdiction irrespective of where the final act of suicide is to be committed, and that its application cannot be avoided by arranging for the final act of suicide to be performed on the high seas, for example, or in Scotland. Otherwise it would be all too easy to exclude the vulnerable or the easily led from its protection. Professor Hirsts emphasis on the terminatory principle as the orthodox approach in English law seems to be misplaced, bearing in mind the more flexible approach that was endorsed in R v Smith (Wallace Duncan) (No 4)  QB 1418 and the fact that the offence under section 2(1) may be committed even if the assisted person does not go on to commit suicide. Lynden Halls suggestion in Territorial Jurisdiction and the Criminal Law:  Crim L R 276 that there is no hard and fast principle which requires an English court to apply the terminatory theory has been endorsed by the decision in that case, which I would regard as having settled the law on this point.
24. Then there are the words of the statute itself. In R v Doot  AC 809, 817 Lord Wilberforce indicated that they were likely to be decisive in a case such as this, where it has not been suggested that there are any reasons of comity to prevent their application to acts that were intended to have effect outside this country. The subsection does not create an offence of aiding, abetting or assisting anothers crime because, as section 1 of the 1961 Act itself provides, the rule of law whereby it was a crime in England and Wales has been abrogated. In the context in which it appears, therefore, the offence which section 2(1) of the Act creates is not a derivative one. The acts that it refers to constitute criminal conduct in themselves, the offence not being one of complicity in the criminal wrongdoing of anyone else. Professor Hirst suggests that the absence of the words anywhere in the world from the subsection must be fatal to a prosecution where the offence is said to be that of assisting a person to travel from England and Wales to a jurisdiction where assisted suicide is lawful. But I can find nothing in the wording of the subsection, bearing in mind the context in which it was enacted, to suggest that it was Parliaments intention to narrow the circumstances in which the offence which it describes would apply. The anomalous results that this would give rise to are a powerful indication to the contrary. The 1961 Act extends to England and Wales only: section 3(3). It would surely be absurd if the offence which section 2(1) creates could be avoided by aiding or abetting someone who was contemplating suicide to travel from Berwick upon Tweed to Scotland so that he could commit the final act by jumping over the cliffs just over the border at Burnmouth.
25. All that having been said it is plain, to put the point at its lowest, that there is a substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution in this country. My noble and learned friend Lord Phillips of Worth Matravers has suggested that the offence that he would be committing by assisting her to commit suicide abroad might be that of murder which, of course, carries a sentence of life imprisonment. That would be the inevitable conclusion if section 2(1) of the 1961 Act does not apply. I think that it needs to be stressed however that this case has been conducted throughout, as was R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department Intervening)  UKHL 61,  1 AC 800 (where the place where Mrs Pretty was intending to commit suicide was never identified), on the basis that the common law offence has been displaced by the offence that was created in 1961 by Parliament. At no point has any law officer even hinted that in a case such as this a prosecution for murder is in contemplation. It is, of course, not possible to decide this issue in these proceedings, nor is it necessary. It is the risk that the Director of Public Prosecutions will consent to her husbands prosecution under section 2(1) of the 1961 Act that deters Ms Purdy from taking the course that she wishes to take. That is sufficient in itself to give rise to the issue which she now asks your Lordships to resolve.