Fleming v Ireland and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 January 2013
• Neutral Citation: [2013] IEHC 2
• Court: High Court
• Date: 10 January 2013

[2013] IEHC 2

THE HIGH COURT

Kearns P.

Carney J.

Hogan J.

[No. 10589P/2012]

Fleming v Ireland & Ors

BETWEEN

MARIE FLEMING

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

CONSTITUTION ART 40

CRIMINAL LAW (SUICIDE) ACT 1993 S2(2)

CRIMINAL LAW (SUICIDE) ACT 1993 S2(4)

CRIMINAL LAW (SUICIDE) ACT 1993 S2

EUROPEAN CONVENTION ON HUMAN RIGHTSART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

CONSTITUTION ART 40.3.2

CONSTITUTION ART 44.1

CONSTITUTION ART 40.3.1

NORRIS v AG 1984 IR 36

WASHINGTON v GLUCKSBERG 521 US 207 1997

NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622

FITZPATRICK v K (F) 2009 2 IR 7

WARD OF COURT, IN RE (NO.2) 1996 2 IR 79

CRUZAN v DIRECTOR MISSOURI DEPT OF HEALTH 1990 110 S CT 2841, 497 US 2841

CARTER v CANADA 2012 BCSC 886

HEANEY v IRELAND 1994 3 IR 593

WARD OF COURT, IN RE (NO.1) 1996 2 IR 73

CONSTITUTION ART 40.1

MCGEE v AG 1974 IR 284

VACCO v QUILL 521 US 793 1997

RODRIGUEZ v CANADA 1993 3 SCR 519

CANADIAN CHARTER OF RIGHTS S7

CANADIAN CRIMINAL CODE S241(B)

ALBERTA v HUTTERIAN BRETHERN OF WILSON COLONY 2009 SCC 37

R (PRETTY) v DPP 2002 1 AC 800

PRETTY v UK 2002 35 EHRR 1

R (PURDY) v DPP 2010 1 AC 3452009 3 WLR 403 2009 4 AER 1147

EUROPEAN CONVENTION ON HUMAN RIGHTSART 8(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(1)

PROSECUTION OF OFFENCES ACT 1985 S10 (UK)

R (NICKLINSON) v MINISTRY FOR JUSTICE 2012 EWHC 2381 (ADMIN) 127 BMLR 197

HAAS v SWITZERLAND 2011 53 EHRR 33

D (M) v IRELAND 2012 IESC 102012 2 ILRM 305

X (D) v JUDGE BUTTIMER UNREP HOGAN 25.4.2012 2012 IEHC 175

PROSECUTION OF OFFENCES ACT 1974 S1

CONSTITUTION ART 15.2

GARDA SIOCHANA ACT 2005 S8(4)

CONSTITUTION ART 15.2

CONSTITUTION ART 30.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

HUMAN RIGHTS ACT 1998 (UK) S6

HUMAN RIGHTS ACT 1998 (UK) S1

HUMAN RIGHTS ACT 1998 (UK) S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

SMEDLEYS LTD v BREED 1974 AC 839

STATE (MCCORMACK) v CURRAN 1987 ILRM 225

AG v X 1992 1 IR 1

CONSITUTIONAL LAW

Personal rights

Assisted suicide - Assisted dying - Prosecutorial guidelines - Terminally ill multiple sclerosis sufferer - Personal autonomy - Dignity of individual - Freedom of individual conscience - Right to bodily integrity and privacy - Consequences of relaxing prohibition - Public interest - Protection of right to life - Protection of vulnerable - Potential for abuse of assisted suicide - Potential for coercion - Assisted death without explicit request - Whether assisted suicide open to abuse - Whether adequate safeguards possible - Whether narrow exception could be confined to protect vulnerable - Whether statutory provision in public interest - Whether absolute prohibition - Whether absolute prohibition in public interest - Whether absolute prohibition proportionate - Whether right to equal treatment engaged -Whether European Convention on Human Rights directly effective - Whether applicant confined to rights and remedies contained in Act - Decision to prosecute - Discretion of DPP - Separation of powers - English prosecutorial guidelines - Whether DPP required to promulgate guidelines on prosecutions - Whether DPP had power to promulgate guidelines - Whether discretion of DPP to prosecute arose before commission of offence - Whether refusal to promulgate guidelines infringed right to privacy - Whether lawful to communicate with DPP - Whether DPP entitled to refuse to prosecute particular class of offences - Whether evidence in case only legitimate factor in DPP's discretion not to prosecute - Whether English prosecutorial guidelines should inform DPP's discretion - Whether DPP obliged to restrain commission of offence - D(M) (a minor) v Ireland [2012] IESC 10, [2012] 2 ILRM 305 applied - Fitzpatrick v FK [2008] IEHC 104, [2009] 2 IR 7, Heaney v Ireland [1994] 3 IR 593, Norris v Attorney General [1984] IR 36 (per Henchy J), State (McCormack) v Curran [1987] ILRM 225, In re a Ward of Court (withholding medical treatment) (No 1) [1996] 2 IR 73 and In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79 followed - Rodriguez v Attorney General of Canada [1993] 3 SCR 519, Smedleys Ltd v Breed [1974] AC 839, Vacco v Quill 521 US 793 (1997) and Washington v Glucksberg 521 US 702 (1997) approved - Attorney General v X [1992] 1 IR 1, Cruzan v Director, Missouri Department of Health 497 US 261 (1990), Haas v Switzerland (App No 31322/07) (2011) 53 EHRR 33, McGee v Attorney General [1974] IR 284, North Western Health Board v HW [2001] 3 IR 622, Pretty v United Kingdom (App No 2346/02) (2002) 35 EHRR 1, R (Pretty) v DPP [2001] UKHL 61, [2002] 1 AC 800 considered - Carter v Canada (Attorney General) [2012] BCSC 886, R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345 not followed - Prosecution of Offences Act 1974 (No 22), ss 1 and 6 - Criminal Law (Suicide) Act 1993 (No 11), ss 2, 2(2) and 2(4) - Criminal Justice Act 1999 (No 10), s 3 - Competition Act 2002 (No 14) - European Convention on Human Rights Act 2003 (No 20), ss 3(1) and 5(1) - Garda Síochána Act 2005 (No 20), s 8(4) - Criminal Law (Sexual Offences) Act 2006 (No 15), s 3 - Constitution of Ireland 1937, arts 15.2, 30.3, 40, 40.1, 40.3.1, 40.3.2 and 44.1 - European Convention on Human Rights 1950, arts 8, 8(1), 8(2) and 14 - Relief refused (2012/10589P - Divisional High Court, Kearns P, Carney & Hogan JJ - 10/1/2013) [2013] IEHC 2

Fleming v Ireland

Facts: The plaintiff sought orders declaring that s. 2(2) of the Criminal Law (Suicide) Act 1993 which made it an offence to act as an accomplice to the suicide of another was invalid due to it being incompatible with the Irish Constitution (notably Article 40.3.2, protection of person), the European Convention on Human Rights and Fundamental Freedoms. Alternatively, an order was sought directing the Director of Public Prosecutions to publish guidelines as to the different prosecution considerations when dealing with a person who had assisted another in committing suicide. It was her view that there was a right to die in extreme circumstances but that this was not reflected in the absolute terms of the aforementioned legislation.

The defendant contended that the Irish Constitution did not expressly or implicitly confer a right to die and that the enforcement of the legislation was in the public interest and took priority over an individual”s right to seek assistance in committing suicide. Further, the same position was submitted in relation to the European Convention on Human Rights including disability discrimination under Article 14. It was finally submitted that the Director of Public Prosecutions was under no obligation to publish guidelines as to prosecution considerations in light of the fact that general common law defences to indictable crimes were available and that it was only after the commission of an offence that the correct form of prosecution (if any) could be determined.

Held by Kearns J that whilst it was true that a complete statutory ban that interfered with an individual”s autonomy would require strong justification, the Criminal Law (Suicide) Act 1993 including s. 2(2) was a justifiable infringement due to public protection considerations and the Article 40.3.2 of the Irish Constitution”s duty of the state to protect life. It was accepted that there were a number of international jurisdictions such as Switzerland and the Netherlands that allowed for assisted suicide under certain circumstances and that there were statutory safeguards in place to prevent abuse of the system. However, it was determined that there were examples of wrongful diagnoses of terminal illnesses that had led to people choosing to end their lives. It was further held that it was extremely difficult to objectively determine what pain was tolerable and what was not. There was also prevailing doubts as to the adequacy of the legal safeguards in the jurisdictions that allowed for assisted suicide. The stance that the court was taking was determined to be in accordance with the decisions of the European Court of Human Rights and therefore the European Convention on Human Rights.

In relation to the plaintiff”s application for an order to compel the Director of Public Prosecutions to publish prosecution guidelines in relation to a third party who has assisted someone in committing suicide, it was held that whilst guidelines had been published on a number of occasions previously, there was no statutory duty to do so and these guidelines were general in nature to assist prosecutors in the implementation of the prosecuting process. They did provide examples of mitigating and aggravating features but they were not offence specific. Further, it could be considered a breach of the separation of powers principle found in Article 15.2 of the Irish Constitution for the Director to engage in such an exercise that would effectively rewrite the legislative intent of the Oireachtas in making the law. The United Kingdom”s Director of Public Prosecutions had published guidelines specific to assisted suicide as a result of the case of R (Purdy) v. Director of Public Prosecutions [2010] 1 A.C. 435, and whilst the Irish Director of Public Prosecutions was not compelled to implement them, it was determined that these guidelines would provide some assistance going forward when determining whether to prosecute a case of assisted suicide or not. However, the Director of Public Prosecutions would be under no obligation to provide guidance to a person based on these materials and others in contemplation of assisted suicide being committed.

Orders sought refused.

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