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Pretty v. United Kingdom

Published online by Cambridge University Press:  27 February 2017

M. A. Sanderson
M. A. Sanderson*
Affiliation:
Keble College, Oxford
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 943 - 949
Copyright
Copyright © American Society of International Law 2002

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References

1 A brief account of the DPP’s function may be found at <http://www.cps.gov.uk/Home/WhatDoesTheCPSDo/> on the Web site of the Crown Prosecution Service, <http://www.cps.gov.uk>.

2 Nov. 4, 1950, ETS No. 5, 213 UNTS 222 [hereinafter European Convention]. The Convention, as well as the decisions and other materials of the European Court of Human Rights, is available online at the Court’s Web site, <http://www.echr.coe.int>.

3 Pretty v. United Kingdom, App. No. 2346/02 (Eur. Ct. H.R. Apr. 29, 2002) [hereinafter Judgment]. The leading House of Lords opinion in the case (by Bingham, L.J.) is set forth in paragraph 14.

4 The Court had noted at the time of its judgment, id., para. 8, that Pretty was “essentially paralysed from the neck downwards,” had “virtually no decipherable speech,” and was “fed by a tube. Her life expectancy is very poor.” Indeed. See Dyer, Claire, ‘Free at Last’—Diane Pretty Dies, Guardian, May 13, 2002, at home 1 Google Scholar; Dyer, Claire, Final Plea for Suicide Rejected, Guardian, Apr. 30, 2002, at home 2 Google Scholar. Throughout the case Pretty was supported by LIBERTY (The National Council for Civil Liberties); see press releases of August 20 and 31,2001, in the “Press and Parliamentary” section of the organization’s Web site, <http://www.liberty-human-rights.org.uk>.

5 Article 2(1) provides: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

6 Judgment, supra note 3, para. 35.

7 Id.

8 Id.

9 See Young v. United Kingdom, 44 Eur. Ct. H.R. (ser. A) (1981). Article 10 (“Freedom of Expression”) similarly protects the right not to speak. It therefore provides for a right against self-incrimination, see K v. Austria, 255-B Eur. Ct. H.R. (ser. A) (1993), as well as for the protection of journalistic sources, see Goodwin v. United Kingdom, 1996-11 Eur. Ct. H.R. 483.

10 Judgment, supra note 3, para. 39.

11 Id.

12 Id.

13 Id,

14 Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

15 Judgment, supra note 3, para. 44.

16 The Court summarized the government’s position on existing case law as follows:

Positive obligations had hitherto found to arise in three situations: where the State was under a duty to protect the health of a person deprived of liberty, where the State was required to take steps to ensure that persons within its jurisdiction were not subjected to torture or other prohibited treatment at the hands of private individuals and where the State proposed to take action in relation to an individual which would result in the infliction by another of inhuman or degrading treatment on him.

Id., para. 47.

17 Id.

18 Id., para. 53.

19 1997-III Eur. Ct. H.R. 777.

20 Judgment, supra note 3, para. 54.

21 Id., para. 58.

22 Id.

23 Id., para. 60.

24 Id.

25 [1993] 3 S.C.R. 519. See Judgment, supra note 3, para. 66.

26 Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Canadian Charter is available online at <http://laws.justice.gc.ca/en/charter/>.

27 Section 241 (b) provides: “Everyone who counsels a person to commit suicide or aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”

28 Judgment, supra note 3, para. 70. The standard of “necessity” was well explained in Olssonv. Sweden (No.1), 130 Eur. Ct. H.R. (ser. A) at para. 67 (1988): “According to the Court’s established case-law, the notion of necessity implies that an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued . . . . “ For good general overviews of Article 8 restrictions, see Van Dijk, P. & Van Hoof, G.J. H., Theory and Practice of the European Convention on Human Rights 537-40 (3d ed. 1998)Google Scholar and Harris, D.J., O’Boyle, M., & Warbrick, C., Law of The European Convention on Human Rights 290-301 (1995)Google Scholar.

29 Judgment, supra note 3, para. 74.

30 Section 2(1) of the Suicide Act 1961, c. 60, 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.”

31 19 Eur. Comm’n H.R. Dec. & Rep. 19 (1978). For a clear discussion of Arrowsmith and the incoherence of the so-called “necessity test” that arises from it, see Carolyn Evans, Freedom of Religion Under The European Convention on Human Rights 111-24 (2001).

32 Article 9(1) provides: “Everyone has the right to .. . manifest his religion or belief, in worship, practice and observance.”

33 Judgment, supra note 3, para. 82.

34 Article 14 provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

35 For the same model of argument put forward in the context of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, see Vacco v. Quill, 521 U.S. 793 (1997).

36 The Court has consistently held that Article 14 does not imply an independent right to “equal treatment” but is a standard of application that is complementary to other, substantive articles within the Convention. See Camp v. Netherlands, App. No. 28369/95 (Eur. Ct. H.R. Oct. 3, 2000). Notice should be taken, however, of the Convention’s protocol no. 12 (ETS No. 177, opened for signature Nov. 4, 2000), which will offer antidiscrimination protection outside the Convention’s substantive articles. Article 1(1) of the protocol (“General Prohibition of Discrimination”) provides: “The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The protocol has yet to receive the ten ratifications required for it to enter into force.

37 Judgment, supra note 3, para. 87.

38 App. No. 34369/97 (Eur. Ct. H.R. Apr. 6, 2000).

39 Judgment, supra note 3, para. 89.

40 Id.

41 This basic doctrine has been most famously and clearly explained in the Article 10 case of Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at para. 48 (1976):

By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them. The Court notes at this juncture that, whilst the adjective “necessary”, within the meaning of [Article 10(2)], is not synonymous with “indispensable” (cf., in [Articles 2(2) and 6(1)], the words “absolutely necessary” and “strictly necessary” and, in [Article 15(1)], the phrase “to the extent strictly required by the exigencies of the situation”) , neither has it the flexibility of such expressions as “admissible”, “ordinary” (cf. [Article 4(3) ]), “useful” (cf. the French text of the first paragraph of Article 1 of Protocol No. 1 [of March 20, 1952]), “reasonable” (cf. [Articles 5(3) and 6(1)]) or “desirable”. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” in this context.

42 See Harris, O’Boyle, & Warbrick, supra note 28, at 38.

43 On April 10, 2001, the Netherlands became the first country in Europe to legalize euthanasia, removing supervision for physician-assisted suicide from the criminal courts to a panel of independent experts. See Osborne, Andrew, Mercy Killing Now Legal in Netherlands, Guardian, Apr. 11, 2001, at 12 Google Scholar. On October 25 of that year, Belgium followed suit, with each case being lodged with a national commission that is charged with the oversight of physicians. See Osborne, Andrew, Belgians Follow Dutch Lead by Legalising Euthanasia, Guardian, Oct. 26, 2001, at 14 Google Scholar. In both countries, euthanasia will be available only to patients over the age of eighteen who are in constant suffering and of sound mind, and who have made Repeated, formal requests.

44 Harris, O’Boyle, & Warbrick, supra note 28, at 39.

45 Van Dijk. & Van Hoof, supra note 28, at 297.

46 App. No. 34369/97, para. 40 (Eur. Ct. H.R. Apr. 6, 2000).

47 Judgment, supra note 3, para. 86.

48 Not necessarily, however, within the meaning of Article 14. See supra note 36.

49 Such limitations may also be found in section 1 of the Canadian Charter, at <http://laws.justice.gc.ca/en/charter/>, and in section 36(1) of the South African Constitution, at <http://www.gov.za/constitution/1996/96cons.htm>.