Introductory Notes: Diane Pretty Case

The following parts can be cut out and stuck on index cards. They represent different roles of people in court at the hearing of the European Court of Human Rights. Since 2001 the UK has passed the Declaration of Human Rights into law as the Human Rights Act. In 2003 Diane Pretty appealed against the House of Lords ruling that Article 2 of the Act, the right to life, did not include the right to end your life. This handout has two parts: the roles (Part 1) and the ruling (Part 2). The suggestion is that the teacher plays the role of presiding judge, and students take different roles. A copy of the Declaration of Human Rights is available on the internet.

Part 1: Different roles in the hearing

You are Diane Pretty. You are terminally
ill and have appealed to the European
Court for the right to end your life.
The circumstances of your case are given
in the attached document. Now make
your submission to the court.

You are the Catholic Society, a religious
Group who believes in the sanctity of life.
You are worried about the effect any
judgement might have on weak
and vulnerable old people. Now make
your submission to the court.

You are the Voluntary Euthanasia Society.
Founded in 1935, you believe the law on
Euthanasia should be changed in order
to assist people like Diane Pretty, suffering
from a terminal illness, to die.
Now make your submission to the court.

You are the husband of Diane Pretty.
The circumstances of her illness are
contained in the attached document.
Though you love your wife, you
are supporting her case. Now make
your submission to the court.

You are the Judicial Committee of the
House of Lords. You are meeting to
review the suicide act of 1961, which
prohibits assisted suicide. You are
worried about the effect of a change in
the law on the weak and vulnerable
who may be pressurised to consent to
their own deaths. Now make your
submission to the Court.

You are the daughter of Diane Pretty.
The circumstances of your mother’s
illness are given on the attached
document. You are shocked and angry
that your mother should want to end
her life in this way. Now make your
submission to the court.

Part 2 The judgement of the European Court of Human Rights

The article is to be read in conjunction with articles 1 and 2 of the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace.
1. On behalf of Mrs Pretty it is submitted that article 2 protects not life itself but the right to life. The purpose of the article is to protect individuals from third parties (the state and public authorities). But the article recognises that it is for the individual to choose whether or not to live and so protects the individual’s right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The article acknowledges that right of the individual. While most people want to live, some want to die, and the article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the state has a positive obligation to protect both.
2. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one’s own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as ‘voluntary euthanasia’, but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty’s case and counsel’s unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the state would be in breach of the Convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an article having the object already defined.
3. It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association (Young, James and Webster v United Kingdom (1981) 4 EHRR 38), article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p 974, para 14.49) and I would for my part be inclined to infer that article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid, p 913, para 13.76). It cannot however be suggested (to take some obvious examples) that articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an article framed to protect the sanctity of life.
4. There is no Convention authority to support Mrs Pretty’s argument. To the extent that there is any relevant authority it is adverse to her. In Osman v United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p 305 the Court said:

5. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.