• In the case of R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, it was found that the legality principle in the Articles of the European Convention on Human Rights requires interference with Convention rights to afford them legal standing in national law in order for the law or rule to be accessible and precise enough.
  • In order for a law or rule to afford accessibility and precision, the discretion and the manner of its exercise must be presented with enough clarity.

Facts of the Case

  • C’s husband wanted C to go to Switzerland for a physician-assisted suicide. This was deemed illegal as per section 2(1) of the Suicide Act 1961 with a penalty of up to 14 years.
  • C wanted to find out whether her husband could face prosecution if he assisted C to go to Switzerland since section 2(4) of the Suicide Act allows the DPP to decide when to bring the charges.
  • DPP has not previously exercised their discretion under s2(4) of the Act, they have merely published their official reasoning for the decision in an old case.
  • C asserted that she was entitled to information under Article 8 ECHR on the factors the DPP consider when exercising their discretion under section 2(4).

Issues

  • Is Article 8 of the ECHR applicable to C’s rights in relation to the exercise of D’s discretion under section 2(4)?

Held by the House of Lords

  • The House of Lords allowed the appeal and found that Article 8(2) places a duty on D to make known to the public a policy on the factors it will consider when choosing to exercise its discretion under section 2(4) Suicide Act 1961.

Lord Hope of Craighead

  • His Lordship emphasised the principle of legality under Article 8(2) and emphasised that the requirement of this Article to not interfere with the rights under Article 8(1) except where the law requires courts to take account of the following:
  • Whether there was a legal basis in domestic law for such interference
  • Whether the relevant law or rule is accessible enough to the individual who is impacted by the restriction, and precise enough to enable them to comprehend the scope of it and see the consequences of his actions so that they can regulate their conduct without contravening statute, and
  • Whether the relevant law or rule is being applied arbitrarily or disproportionately. [40]
  • “A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary.” [41]

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