1 R. (Pretty) v. Director of Public Prosecutions (Secretary of State for the Home Department intervening), [2001] UKHL 61; [2002] 1 A.C. 800. Human rights issues were addressed in the judgments given by Lord Bingham of Cornhill, Lord Steyn and Lord Hope of Craighead. Lord Hobhouse and Lord Scott in their speeches merely expressed their agreement in this regard. References to the judgment will be given by paragraph of the judgment. The decision has been noted by Keown [2002] C.L.J. 8.

2 Pretty v. United Kingdom (Application no. 2346/02), judgment of 29 April 2002 (available at (http://www.echr.coe.int/), noted by Pedain [2002] C.L.J. 511 and by Leenen (2002) 9 European Journal of Health Law 257. References to the judgment will be given by paragraph.

3 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”), adopted on 4 November 1950 and entered into force on 3 September 1953 (Council of Europe, European Treaty Series, No. 5). All provisions cited merely as Articles (Art.) in the subsequent text are those of the European Convention on Human Rights.

4 Diane Pretty died on 11 May 2002, less than a fortnight after the ruling of the European Court of Human Rights.

5 Her disease is described in the speech of Lord Steyn; R. (Pretty) v. DPP [2002] A.C. 800, at [42]—[44]. In a BBC documentary on her case screened shortly after her death, Mrs. Pretty said (by means of indicating letters on a computer screen in a painstakingly slow process, as by that point she had virtually no intelligible speech left): “I reached the point where I wanted to die when I could do nothing for myself any more”. With a fully alert brain, she was at the mercy of her failing body, helpless, drooling, often in pain as her condition made it hard for her to communicate to her carers how they could make her more comfortable. Sometimes screaming with sheer frustration at how tedious and burdensome her life had become, she visibly experienced her condition as intensely humiliating and degrading.

6 Mrs. Pretty's physical condition at the time of the House of Lords’ hearing begged the question whether she was still capable of contributing to her eventual death in a manner which would make the involvement of the other person an act of assistance to suicide rather than active euthanasia. Their Lordships were aware of the problem but willing to assess the case as one merely concerned with the permissibility of assisting suicide, leaving aside the issue of Mrs. Pretty's factual ability to remain the master of her own killing in the required manner at a later time (cf. the remarks by Lord Steyn, R. (Pretty) v. DPP [2002] A.C. 800, at [44]: “There is … no information available as to how it is proposed that her husband would assist her suicide. Moreover, there is no medical evidence showing what Mrs. Pretty herself can do to carry out her wish. It has, however, been emphasised on her behalf that the final act of suicide will be carried through by her.”). The point is not raised in the judgment of the European Court of Human Rights.

7 All the UK judges involved in the case were agreed that the DPP in any case lacked the power to give an undertaking of this sort. The most extensive discussion of this aspect of the case is contained in the judgment of the Queen's Bench Division (Divisional Court) of 17 October 2001, where Tuckey L.J., Hale L.J. and Silber J. held that the DPP could not give an undertaking not to prosecute before the act in question had been committed, and explained that the proper way for Mrs. Pretty to put her case before the courts would have been to present a detailed proposal of how she intended her husband to assist her in bringing about her death and to apply for a declaration that what they propose to do would be lawful (Regina (Pretty) v. Director of Public Prosecutions (Secretary of State for the Home Department intervening), [2001] EWHC Admin 788 (Queen's Bench Division), available at (http://www.courtservice.gov.uk/judgmentsfiles/j389/Pretty_v_DPP_SSHD.htm)). For the position in the House of Lords, see particularly Lord Hobhouse, R. (Pretty) v. DPP [2002] A.C. 800, at [118]—[119].

8 Lest this proposition be seen as too flawed to merit serious consideration, it should be pointed out that it was actually made (and rejected) before the Canadian Supreme Court in the case Rodríguez v. Attorney-General of Canada and Others [1994] 2 L.R.C. 136, 107 D.L.R. (4th) 342, which is discussed at length by Lord Bingham, R. (Pretty) v. DPP [2002] A.C. 800, at [19][22].

9 Hohfeld, , Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1923)Google Scholar. Hohfeld himself dubbed the third category “privileges”; I follow Williams in speaking instead of “liberties” (see Williams, Glanville, “The Concept of Legal Liberty”, in Summers, R. (ed.), Essays in Legal Philosophy (Oxford 1970), 121, 124-125Google Scholar. Hohfeld made use of a fourth category, which he called “no-right”. It seems to me that this “no-right” is a curious kind of legal anti-matter which should not be listed alongside what one might call the positive legal entities of rights, duties, and liberties, which is why it is absent from my list of what a person can “have” as a matter of law.

10 This is the feature Hohfeld termed a “no-right”.

11 My discussion of the relation between Hohfeldian liberties and fundamental rights is very much indebted to Robert Alexy, who addressed the problem on pp. 187-210 of his seminal work Theorie der Grundrechte (3rd edn., Frankfurt am Main 1996), of which an English translation by Rivers, Julian has recently appeared under the title A Theory of Constitutional Rights (Oxford 2002)Google Scholar. Alexy coined the terms “unbewehrte Freiheit” (which I have rendered here as “simple liberty”) and “bewehrte Freiheit” (“protected liberty”) to describe that relationship (pp. 203-208). While I follow Alexy's exposition in many aspects, there may be some divergencies between Alexy's position and my own. To this extent, my argument should be taken as a different one which does not rely on Alexy's reasoning, or claim to represent it. At the same time I want to acknowledge the inspirational basis of my discussion in Alexy's thought.

12 Alexy, ibid., p. 203.

13 This is the point on which I possibly disagree with Alexy, whose discussion sometimes comes close to equating Hohfeldian liberties with simple liberties (ibid., p. 190 and p. 205). However, I believe that the discrepancy is ultimately merely terminological, in that Alexy develops his definition of a simple liberty by reference to the basic features exhibited by Hohfeld's definition of a legal liberty. I do not think that he would deny that—viewed from the perspective of human rights law—Hohfeldian liberties are really neutral in the sense that, by merely knowing the content of the Hohfeldian liberty, we know nothing yet about whether it is a protected or an unprotected (= simple) one.

14 The following analysis concentrates on the judgment of the European Court of Human Rights insofar as there were no significant discrepancies between the position taken by the House of Lords and by the Strasbourg Court, and addresses the reasoning of the House of Lords only to the extent that it led to materially different findings.

15 Pretty v. United Kingdom (Application no. 2346/02), judgment of 29 April 2002, paras. 39-41.

16 Mrs. Pretty's argument is summarised ibid., at para. 54.

17 Pretty v. United Kingdom, para. 54

18 Pretty v. United Kingdom, paras. 54-56

19 Pretty v. United Kingdom, para. 82

20 Pretty v. United Kingdom, para. 61. While there was no previous Strasbourg case law which explicitly recognised a right to self-determination as being contained in Article 8 of the Convention, the Court now held that “the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

21 R. (Pretty) v. DPP [2002] A.C. 800, at [23].

22 R. (Pretty) v. DPP [2002] A.C. 800, at [61].

23 R. (Pretty) v. DPP [2002] A.C. 800, at [100]

24 The wording of Article 8 para. 1.

25 R. (Pretty) v. DPP [2002] A.C. 800, at [100].

26 The German Constitution contains a powerful expression of the relation between human dignity and human rights. Its first Article encapsulates the conceptual and moral foundation of all human rights law and deserves to be quoted in full: “The dignity of the human being is inviolable. To respect and to protect human dignity is the duty of all public authority. For this reason, the German people commit themselves to inviolable and inalienable human rights as the foundation of any human society, and of peace and justice in the world. The following fundamental rights bind legislature, executive and judicature as directly applicable law” (Grundgesetz für die Bundesrepublik Deutschland, Article 1; author's own translation). German legal writers and the decisions of the German Constitutional Court ground the right to personal autonomy and individual self-determination (“Allgemeines Persönlichkeitsrecht”) in a combined reading of the commitment to human dignity and the fundamental right which specifically protects freedom of action in general terms (the “Allgemeine Handlungsfreiheit” protected by Art. 2 para. 1 of the German Constitution, see BVerfGE 52, 131). It is this right to personal autonomy and individual self-determination which is considered the right affected by the prohibition of voluntary euthanasia, mere assistance to suicide not being illegal (see W. Höfling, “Forum: ‘Sterbehilfe’ zwischen Selbstbestimmung und Integritätsschutz” (2000) Juristische Schulung 111).

27 Quoted after Williams, Glanville, The Sanctity of Life and the Criminal Law (London 1958), p. 228Google Scholar.

28 Pretty v. United Kingdom, para. 65.

29 Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, at [48]-[50].

30 Pretty v. United Kingdom, para. 70

31 That it is a state interest in protecting the lives of its citizens which is at issue here is recognised in the lucid discussion offered by Meredith Blake, “Physician-assisted suicide: A criminal offence or a patient's right?”, (1997) 5 Med.L.R. 294, 301. This state interest is independent from the state duty to protect and ensure human life under Article 2 and might go beyond its scope in that it enables the state, in the interest of public health or public morality, to impose heavier restrictions on conduct which puts human life at risk than what is required in order to comply with the state's protective obligations under Article 2, or automatically justified by them.

32 Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149.

33 Pretty v. United Kingdom, para. 71.

34 I quote from the same television documentary mentioned above in footnote 5.

35 See Margaret Otlowski, “Active voluntary euthanasia: options for reform”, (1994) 2 Med.L.R. 161, 178. Other general considerations against legalisation of assisted suicide and voluntary euthanasia from a perspective of principled moral support for assisted suicide are put forward by Alexander McCall Smith, “Euthanasia: The Strength of the Middle Ground”, (1999) 7 Med.L.R. 194, 205 and Philippa Foot, “Euthanasia”, (1977) Philosophy & Public Affairs 85, 111.

36 Pretty v. United Kingdom, para. 74. Prosecutorial discretion is thought by the Court to introduce an element of leniency which is sufficient to take into account morally relevant factual variations between different cases where suicide is assisted in breach of the law (para. 76).

37 R. (Pretty) v. DPP [2002] A.C. 800, at [34] and [35] (Lord Bingham); [64] (Lord Steyn); [104] and [106] (Lord Hope). The impression of a misunderstanding is fortified by Keown, [2002] C.L.J. 8, 10, who summarises Lord Bingham's argument as saying that Article 14 had no application unless Mrs. Pretty could show a breach of another acticle of the Convention (my emphasis). However, the formulation is Keown’s, not Lord Bingham’s, and so the mistake might be Keown's too.

38 R. (Pretty) v. DPP [2002] A.C. 800, at [64].

39 R. (Pretty) v. DPP [2002] A.C. 800, at [34] (my emphasis).

40 Thus, Lord Bingham continues at [35]: “If, contrary to my opinion, Mrs. Pretty's rights under one or other of the articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory”, and Lord Hope points out that “[t]he difficulty which she faces is that, for the reasons already stated, her case does not engage any of the other articles on which she relies” ([105]).

41 R. (Pretty) v. DPP [2002] A.C. 800, at [35].

42 R. (Pretty) v. DPP [2002] A.C. 800, at [35].

43 R. (Pretty) v. DPP [2002] A.C. 800, at [36] (Lord Bingham) and [64] (Lord Steyn). The misunderstanding is avoided by Lord Hope who correctly finds that “Mrs. Pretty can reasonably claim that her physical situation is significantly different from that of others who wish to commit suicide ..([105]).

44 This is recognised by the European Court of Human Rights, Pretty v. United Kingdom, para. 82.

45 For instance when assessing national legislation under Art. 28 EC-Treaty on the free movement of goods.

46 See the plethora of references and discussion in Dworkin, Ronald, Sovereign Virtue. The Theory and Practice of Equality (Cambridge/Mass., London 2000)Google Scholar.

47 Thlimmenos v. Greece [2000] 31 E.H.R.R. 411, 424 (para. 11).

48 R. (Pretty) v. DPP [2002] A.C. 800, at [36].

49 R. (Pretty) v. DPP [2002] A.C. 800, at [36].

50 Rodríguez v. Att.-Gen. of Canada [1994] 2 L.R.C. 136, noted [1994] C.L.J. 234.

51 “Without objective and reasonable justification”, as the Strasbourg Court puts it in Pretty v. United Kingdom, at para. 88.

52 See the summary of the UK Government's arguments in Pretty v. United Kingdom, ibid., para. 86.

53 Slippery slope arguments are explained and discussed by M. Freeman, “Death, Dying and the Human Rights Act 1998”, [1999] C.L.P. 218, 232-238.

54 In his recent discussion of slippery slope arguments concerning euthanasia, Keown put forward a more radical version of the logical slope, arguing that acceptance of active voluntary euthanasia leads to acceptance of active non-voluntary euthanasia “because the former rests on a judgement that some patients would be better off dead, which judgement can logically be made even if the patient is incapable of making the request” (Keown, John, Euthanasia, Ethics and Public Policy. An Argument Against Legalisation (Cambridge 2002), at p. 76Google Scholar). Keown's reasoning has been challenged by Lillehammer, “Voluntary euthanasia and the logical slippery slope argument”, [2002] C.L.J. 545. Philippa Foot's position (in “Euthanasia”, note 35 above) provides an example of a philosophical case for active voluntary euthanasia based on an assessment that life has become an evil for the person concerned which yet avoids sliding down the argumentative slope towards non-voluntary euthanasia by accepting the right to life, which requires a kind of “waiver” through a voluntary request of the individual concerned, as a side-contraint to acts of euthanasia based on compassion with suffering.

55 Pretty v. United Kingdom, para. 88.

56 The point is made by Otlowski, Margaret, Voluntary Euthanasia and the Common Law (Oxford 1997, cited after the paperback edn. 2000), at p. 230Google Scholar. A recent example is provided by the case Re B (adult: refusal of treatment) [2002] EWHC 429 (Fam).

57 Cf. Keown op. cit. (note 54 above).

58 Tuesday 7 May 2002, part T2, p. 7.

59 The House of Lords Select Committee of Medical Ethics for instance makes the point that “we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life” (Report, House of Lords Paper 21-1 (1994), p. 49, para. 239).

60 Airedale N.H.S. Trust v. Bland [1993] A.C. 789.

61 Re A (children) (conjoined twins: surgical separation) [2001] Fam. 147.

62 A more common formulation would be “sanctity of life”. I use the one I chose to emphasise that the sanctity-of-life-principle, when pitted against a competent individual's wish to die, really comes to embody a duty to live.

63 A similar point is made by Sue Wolhandler, “Voluntary Euthanasia for the Terminally Ill and the Constitutional Right to Privacy” (1984) 69 Cornell Law Review 363 at 369 and by David P.T. Price, “Assisted Suicide and Refusing Medical Treatment: Linguistics, Morals and Legal Contortions” (1996) 4 Med.L.R. 270, 290.

64 The philosopher Philippa Foot offers the following definition of euthanasia: “An act of euthanasia, whether literally act or rather omission, is attributed to an agent who opts for the death of another because in his case life seems to be an evil rather than a good” (“Euthanasia”, note 35 above, p. 96).

65 The point is put with great sophistication by Philippa Foot, ‘’Euthanasia”, pp. 100-106.

66 It is sometimes argued that whenever our decisions (for instance about the continuation or discontinuation of life-saving treatment) involve differentiations based on the physical condition of the individual concerned we are really making a covert judgment that this person's life is, or has ceased to be, worthwhile. From that vantage point, it seems easy to suggest that our very willingness to accede to a request made by a person in the physical predicament of Mrs. Pretty to receive assistance in committing suicide, while we would at the same time be prepared to deny such assistance to the able-bodied, reflects a covert judgment that Mrs. Pretty's life is not worthwhile. However, such an argument would suffer from the obvious fallacy that the reason Mrs. Pretty's physical condition matters is that this is what puts her into a position where she is unable to commit suicide unaided “like everybody else can”, and thus raises the issue of indirect discrimination. The point behind assessing her physical condition is not to form an opinion about the worthwhileness of her life, but simply to discover what is needed to put her on a par with her able-bodied fellows when it comes to exercising choices about her own life and death. We do not exempt her from the rule that noone is allowed to receive assistance to commit suicide because her life, in contrast to other people's lives, is not worthwhile, but because whatever the worthwhileness of anyone's life there is no good reason why her choices in life should be more restricted than anybody else's simply because she suffers from a severe physical handicap.

67 This is recognised by Lord Hope, R. (Pretty) v. DPP [2002] A.C. 800, at [85].

68 Cf. my discussion in part 6 above.

69 Handyside v. United Kingdom (1976) 1 E.H.R.R. 737.

70 These issues are addressed by Lord Irvine of Lairg, “Activism and Restraint: Human Rights and the Interpretative Process” (1999) 4 E.H.R.L.R. 350.

71 See the discussion by R. Singh, M. Hunt and M. Demetriou, “Is there a Role for the ‘Margin of Appreciation’ in National Law after the Human Rights Act?” (1999) 4 E.H.R.L.R. 15. Lord Hope has recently placed on record his rejection of such a transfer of the margin of appreciation doctrine into a domestic context: “This technique is not available to the national courts when they are considering Convention issues arising within their own countries” (R. v. Director of Public Prosecutions, ex parte Kebilene and Others [2001] 2 A.C. 326, 380).

72 See section 4 para. 6 of the Human Rights Act 1998.

73 R. (Pretty) v. DPP [2002] A.C. 800, at [57] per Lord Steyn.