P bought a judicial review against the DPP for failing to provide a policy setting out the circumstances that might lead to a prosecution for aiding and abetting, counselling or procuring a suicide contrary to s.2(1) Suicide Act 1961 especially where the assisted suicide took place in a country where such practice was lawful. P, who suffers from multiple sclerosis, had stated that she intends when her condition becomes intolerable to travel somewhere where ‘assisted suicide’ was lawful. She was concerned that because she would be unable to make the necessary travel arrangements her husband could run the risk of prosecution. Her argument was that the s.2(1) offence interfered with her rights under Article 8 of the ECHR as well as with the rights of anyone who may assist her. In order for this interference to be lawful the DPP must issue a policy statement setting out the criteria he would consider when determine whether to consent to a prosecution under part 2(4) of the Act.
The High Court recognised that whilst the European Court of Human Rights had recognised that assisted suicide could engage article 8, the House of Lords had held that it did not and the Divisional Court had to follow the House of Lords unless the circumstances were truly exceptional. On application of Kay v Lambeth LBC (2006) UKHL 10, (2006) 2 AC 465 and R (on the application of Pretty) v DPP (2001) UKHL 61, (2002) 1 AC 800 (Pretty v United Kingdom (2346/02) (2002) 2 FLR 45 ECHR not followed) the court determined that the facts of this case did not engage article 8. Notwithstanding this they held that the DPP’s Code of Practice (issued under s.10 of the Prosecution of Offenders Act 1985) when taken together with the administrative law principles and remedies available satisfied the ECHR’s requirement under article 8(2) for clarity and forseeability so as that there could be no arbitrary or unfettered decision making by the executive, because any failure to follow these principles could be remedied either within the criminal prosecution proceedings themselves or through judicial review. The Court recognised that the DPP had previously issued Codes of Practice in relation to certain crimes, (notably domestic violence, driving and football- related offences) the particular requirement for this guidance did not apply in relation to assisted suicide.