Section 2(2) of the Act sets out the offence of assisting suicide, but according to s. 2(4), prosecutions can only be brought “by or with the consent of the Director of Public Prosecutions”. Relying on the decision of the House of Lords (indeed, the last decision ever rendered by that body) in Purdy v. Director of Public Prosecutions, 2009 UKHL 45, counsel for Ms. Fleming argued that the Director of Public Prosecutions was obliged to develop a “code of conduct” which would give guidance to individuals on how the prosecutorial discretion provided for by s. 2(4) would be exercised.
The starting point here is Article 8(1) of the Convention, which guarantees the right to private and family life. This has been interpreted expansively. As the European Court of Human Rights explained in Haas v. Switzerland(2011), 53 EHRR 33:
With respect, this is rather beside the point. First, the question in Purdy was whether s. 2(4) constituted a limitation “in accordance with the law”. In Fleming, the question is the same. Whatever about the prohibition in s. 2(2), the power to choose not to prosecute is problematic. An individual who wishes to help a terminally ill individual end his or her life has no access to the principles which will guide the Director of Public Prosecutions’ discretion to bring criminal charges.
Second, public bodies have an inherent power to issue guidelines which will regulate their exercise of discretion. The Director of Public Prosecutions is no different. Indeed, general guidelines to prosecutors have already been issued! As the High Court sheepishly acknowledged, their logic suggests that the Director of Public Prosecutions has no power at all to issue guidelines (at para. 167); presumably, the existing guidelines are unlawful. This conclusion surely cannot stand.
The High Court mustered two other flawed arguments in support of its position. One was based on the means of incorporation into Irish law of the Convention. Unlike in the UK, where s. 6 of the Human Rights Act, 1998imposes an obligation on all public authorities to act in a Convention-compliant manner, the Irish legislation only requires Convention compliance by public bodies in the exercise of their “functions”. According to the High Court, there were no “functions” at issue because the Director of Public Prosecutions had no authority to issue guidelines. But this runs into a serious objection: exercising discretion to prosecute or not under s. 2(4) is as plain an example of a statutory function as one will find. And if one disagrees with the High Court’s conclusion that the Director of Public Prosecutions has no power to issue guidelines, the Convention argument is weaker still: at the moment, the Director of Public Prosecutions is not only exercising discretion under s. 2(4), but doing so by reference to guidelines. There is an air of unreality about the conclusion that this arrangement cannot be brought into line with the Convention.
The other argument was based on the Irish Constitution. Article 15 vests legislative power in the Oireachtas (Houses of Parliament). Power can be delegated to public bodies, but only if principles and policies are set out in the legislation. The High Court held that requiring the Director of Public Prosecutions to issue guidelines would breach Article 15 by undermining the law-making authority of the Oireachtas:
166. It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…
In short, requiring guidelines would be unlawful and undemocratic. However, case-by-case exercises of discretion would not be; exercises of discretion by reference to factors developed by an administrative decision-maker in another jurisdiction would not be; and factors developed by a foreign judge would not be. This conclusion is very odd and I trust the Supreme Court will not sustain it.