R (on the application of Purdy) v the Director of Public Prosecutions  UKHL 44. There are several remarkable features about the case of Debbie Purdy. For one, the case started with judicial review proceedings in April 2008, concluding with the House of Lords judgment on 30 July 2009 – less than 15 months later Second, this was the very last judgment of the House of Lords before the Lords rose to re-emerge as the Supreme Court in October. Third, the Lords made new law by overturning the decision in the Pretty case, deciding that article 8 was engaged. And of course the case has turned public opinion, sparking a fresh debate about assisted suicide. Ms Purdy suffers from primary progressive multiple sclerosis, for which there is no known cure. It was diagnosed in 1995 and is progressing. She now needs an electric wheelchair and has lost the ability to carry out many basic tasks. She has problems with swallowing and has choking fits when she drinks. Further deterioration in her condition is inevitable. There will come a time when her continuing existence will no longer be of an acceptable quality. When that happens she will wish to end her life by having an assisted suicide in Switzerland. By that stage she will be unable to do so without assistance from her husband Omar Puente. Omar is willing to help her to make this journey. Debbie, however, does not want to take the risk that Omar will be prosecuted for helping her. The claim issued in April 2008 sought judicial review of the refusal of the DPP to publish details of his prosecution policy in relation to offences committed under Section 2(1) of the Suicide Act 1961. House of Lords judgmentThe House of Lords, comprising Lord Phillips of Worth Matravers, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury, in a unanimous judgment in favour of Ms Purdy, said that the House was free to depart from its earlier decision in Pretty and to follow the Strasbourg court’s decision in Pretty. They said the present law does interfere with Ms Purdy’s right to respect for private life. She has the right to determine how to spend the closing moments of her life, which is part of the act of living. Ms Purdy wishes to avoid an undignified and distressing end to her life. This should be respected. Second, the committee required the DPP to prepare an offence-specific policy identifying the factors the DPP would take into account when deciding to exercise his discretion whether or not to prosecute, as the Code for Crown Prosecutors offered virtually no guidance in this sensitive area. The convention test of accessibility and forseeability was not met in the absence of an offence-specific policy. Lords Hope and Neuberger emphasised that it is not part of their function to change the law in order to decriminalise assisted suicide. This was a matter for parliament. However, they went on to say that their function as judges is to say what the law is and, if it is uncertain, to clarify it. Also, it is ‘patently obvious that the issue [is] not going to go away’. The Purdy case has fuelled the debate over assisted suicide. The fact that the composer, Sir Edward Downes, and his wife both travelled to Dignitas in Switzerland for an assisted suicide in July has made more people sit up and take notice of how topical this issue is. The Royal College of Nursing subsequently announced that it is taking a neutral position on assisted suicide, having previously been against it. A Populus opinion poll around the same time found that 74% of people wanted doctors to be allowed to help terminally ill patients end their lives, and six out of 10 also wanted to be allowed to help the dying without fear of prosecution. A question that is increasingly being asked is why people who are terminally or incurably ill should have to travel to Switzerland or elsewhere, rather than be able to die at home surrounded by their loved ones. A number of other jurisdictions, namely Switzerland, Belgium, Holland, Luxembourg and the US state of Oregon all have assisted suicide laws and have managed to devise safeguards – safeguards with regard to which there is little evidence of abuse, if research on the area is to be believed. Why can’t this be done here? It is fitting that a case of this importance should be the very last case on which judgment has been given by the old House of Lords, and that it should involve such fundamental issues which extend the ambit of article 8 of the European Convention on Human Rights. Background and practiceThe background to the issue is this: to date, 115 UK residents are known to have travelled to Dignitas in Switzerland to have an assisted suicide, helped at various stages of the process by family members or friends. Moreover, the evidence shows that a doctor and members of Friends at the End have helped people to travel to Switzerland purely for humanitarian reasons. A survey of the UK residents who accompanied loved ones to Dignitas, carried out for Debbie’s case, showed unanimous support for the Dignitas service, and overwhelming confirmation that the way in which people going to Dignitas had been able to end their lives was dignified and humane. Of the 115 cases, only eight had been referred to the DPP for a decision as to whether or not the assistant should be prosecuted. In all but two of the cases the decision not to prosecute had been taken on the ground that there was insufficient evidence. In the other cases, prosecutions had not proceeded on grounds that it was not in the public interest to do so. Faced with this disparity, Ms Purdy felt that the law was unclear and the DPP should explain what factors he would take into account and weigh in the balance in deciding whether to prosecute or not. The wider public significance of the case is demonstrated by the fact that more than 800 UK residents are members of Dignitas, indicating that they have contemplated or are contemplating suicide. If each person is accompanied by two people on average, at the very least about 1,600 people could be liable to prosecution. It was argued for Ms Purdy that, given the gravity of the consequences for her husband (up to 14 years’ imprisonment), the law should provide her with clarity so that she and her husband could regulate their conduct accordingly. This places them in what the Court of Appeal described as ‘an impossible dilemma’ R (Purdy) v Director of Public Prosecutions  EWCA Civ 92:  All ER(D) 197 (Feb) (para 9). The Court of Appeal expressed considerable sympathy for the situation in which Ms Purdy and Mr Puente found themselves in. However, the Court said that it was unable to find in Ms Purdy’s favour on either aspect of her argument, as the House of Lords in Pretty had decided that article 8 was not engaged. In Pretty v Director of Public Prosecutions, the House of Lords had found that article 8 was directed to the protection of personal autonomy while the person was alive, but did not confer a right to decide when or how to die. The European Court of Human Rights disagreed (see Pretty v United Kingdom  35 EHRR 1, para 67). The Court of Appeal held that it was bound to follow the decision of the House of Lords and was not at liberty to apply the ruling of the Strasbourg court, Kay v Lambeth London Borough Council  UKHL 10,  2 AC 465 paragraphs 28, 42-45, per Lord Bingham of Cornhill: R(RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311 paragraph 64 per Lord Neuberger of Abbotsbury. As to the question of whether the requirements of article 8(2) were satisfied, the Court of Appeal said that the failure to promulgate a crimespecific policy relating to assisted suicide did not make the effect of section 2(1) of the 1961 act unlawful, nor was it not in accordance with the law. The law as it standsIt is not unlawful for a person to commit suicide in this country, so the primary offence is not illegal. However, it is unlawful to assist a person to commit suicide by aiding, abetting, counselling or procuring the suicide of another. The penalty if convicted is imprisonment for a term of up to 14 years. Section 2(4) of the act provides that proceedings can only be brought with the consent of the DPP. It was argued that the DPP had acted unlawfully either by failing to promulgate a policy or by failing to disclose the criteria which he applies in cases of this kind, whether he calls it a policy or not. That, in summary, was because the criminalisation of assisted suicide in the UK under section 2(1) constitutes an interference with the article 8(1) right to respect for private life of the claimant and interested party, which is neither ‘in accordance with the law’ (article 8(2)) nor proportionate in the absence of any policy setting out the circumstances in which a prosecution will be brought. The challenge distinguished Ms Purdy’s case from the case of Diane Pretty. In R (Pretty) v DPP  1 AC 800 and the subsequent Strasbourg case of Pretty v United Kingdom  35 EHRR 1, Diane Pretty sought an immunity from prosecution for her husband from the DPP if her husband assisted her to die, whereas in this case what was sought was disclosure of the criteria that the DPP would take into account in deciding whether to prosecute. Saimo Chahal, who acted for Ms Purdy, is a partner and head of the civil liberties and social welfare team at Bindmans.
Your feature about social mobility underplayed what can be the biggest barrier for applicants to the law – money (see  Gazette, 20 August, 8). The starting point will be the costs of a first degree. If it is not in law, then the student has to take and pass the graduate diploma in law. All candidates must then take and pass the legal practice course. Finally they must live on a trainee’s salary for two further years before entering practice, often at a salary barely higher than they trained at. They have to be prepared to take the very real risk that they will not be offered a training contract at the end of their LPC, or employment at the end of their training contract. The total cost of legal education will rarely be less than £20,000 and often more. Of that sum, £10,000 will have gone to finance the LPC alone. It stands to reason that it is going to be much easier for students from middle-class families, who are more likely to get parental support, to incur these costs than those from poorer backgrounds, including the significant number who will be supported by a single parent. Currently, the support available towards postgraduate stage costs is minimal. Unless this or a future government tackles the financial barrier to entry to the legal profession it will inevitably remain largely the domain of the well-off. Steve Willey, East Marton, Skipton, Yorkshire
Charles Plant is chair of the board of the Solicitors Regulation Authority New disciplinary procedure Until 1 June 2010, the SRA had no option in cases where a reprimand was thought to be an inadequate penalty but to refer the solicitor to the Solicitors Disciplinary Tribunal. Referral to the SDT inevitably entails delay, additional stress for the solicitor and the risk of costs increasing to the point where they may substantially exceed the fine imposed by the SDT. However, the SRA now has the power to impose a written rebuke and/or a penalty of up to £2,000, having made a finding of breach of regulatory obligations or professional misconduct. The new rules, which apply only to matters where the act or omission giving rise to the SRA finding occurred wholly after 1 June 2010, can be found on our website. For the avoidance of doubt, the most serious disciplinary cases will continue to be referred to the tribunal, including all in which dishonesty is alleged. The civil standard of proof (the balance of probabilities) will be applied in SRA decisions, as it always has been in cases not referred to the SDT. Both rebukes and fines, which can be ordered together, may be published in the public interest. There is a right of appeal to the SDT against an order to pay a penalty and also against a rebuke if it is intended to be published. The SRA’s new HandbookWe have now published our new Handbook for consultation with the profession and other interested parties. This is driven by our move to outcomes-focused regulation and the need to re-draft sections of the regulatory regime to accommodate alternative business structures. The Handbook can be found at the SRA website. The Solicitors Regulation Authority board has been considering the future of the assigned risks pool (ARP), the arrangement by which firms that have been unable to obtain professional indemnity insurance in the open market are provided with cover for a limited period. The ARP is underwritten by all the qualifying insurers as a condition of participation in this market. The number of firms in the ARP has increased dramatically in recent years, from 28 in 2007/08 to 259 in May 2010. Consequently, the cost of the ARP has increased considerably and many solicitors whose firms are not in it are concerned that it is significantly increasing their premiums. The SRA board has concluded that continuation in its current form is simply not sustainable. We have gone to great lengths to ensure that our decisions have been based on as complete information as possible and all relevant views have been fully taken into account. The responses to two consultations and a full equality impact assessment have been considered. The latter included research commissioned by the Law Society and information from qualifying insurers about their approach to equality. The option of closing the ARP altogether was proposed at the beginning of the process. However, we concluded that, because of the potentially detrimental consequences to certain sectors of the profession, some kind of safety net is required. We have decided to retain the ARP at this juncture, but from 1 October 2010 no newly established firms will be able to go straight into it, and the current two-year limit for firms to remain will be reduced to one. The SRA will be able to allow a firm to stay in the pool for a second year, subject to objective criteria. Our aim has been to preserve a system of sound financial protection for clients, while maintaining a sustainable competitive market for solicitors’ compulsory professional indemnity insurance. In conjunction with the Law Society, we will consider ways in which we can give better support to firms to reduce the risk of them entering the ARP in the first place. For many firms the uncertainty about the future of their insurance arrangements has been compounded by the placing of the Irish firm, Quinn Insurance, into administration under Irish insurance legislation. For the time being, Quinn insurance policies remain valid, and solicitors insured with Quinn need not take further action. But I urge all firms that have an indemnity policy with Quinn to monitor the SRA website (www.sra.org.uk), where we will post the latest guidance at least until the end of October. In the wake of our review of our overall approach to regulation and the expanding legal services landscape, we are about to start a root-and-branch review of client financial protection, with a view to introducing the outcomes in time for the renewal on 1 October 2011. The review will be wide-ranging and include both compulsory professional indemnity arrangements and the compensation fund. We shall consult closely with the profession, consumer organisations and the insurers as we undertake this work. We are also making arrangements for a meeting with black and minority ethnic practitioner groups and insurers to explore the concerns which have been raised about the ways in which the insurance market works for some sectors of the profession. It is essential that we can all have confidence that the system is working fairly, effectively and efficiently.
The Law Society’s professional indemnity insurance helpline is braced for a surge in calls from firms looking to secure cover before the 1 October renewal deadline. To assist those firms having difficulty securing renewal terms, the Law Society today launched a SafetyNet scheme. The scheme will provide assistance to ‘distressed’ firms, that is those firms seeking to avoid entering the assigned risks pool (ARP) or attempting to exit it, in obtaining professional indemnity cover from the insurance market. SafetyNet, managed by Lloyd’s broker PYV, will seek to provide such firms with access to insurers that specialise in distressed risks. Firms that apply will undergo an assessment to determine their suitability for the scheme, and solicitors may also be required to undergo a risk assessment survey prior to their proposal being presented to the insurers. Law Society chief executive Desmond Hudson said: ‘The PII market this year has, as expected, proved challenging for some legal practices.’ But he said there will still be an opportunity for firms to find PII cover after 1 October. Commenting on the SafetyNet scheme, Hudson said: ‘We are committed to doing all we can to offer an opportunity to distressed legal practices to escape the ARP or avoid it. This is a positive development for those unable to obtain professional indemnity insurance cover.’ PYV director Nick Pointon said: ‘The scheme is designed to deliver a positive change to firms through effective risk management, and by so doing enable them to not only obtain cover now, but also enhance their risk profile moving forward, so they are in a much stronger position to secure cover at future renewals.’ The PII helpline can be contacted on 020 7320 9545.
A recent test case involving a former Afghanistan interpreter working for the British army in Helmand province has raised important questions about the decision to prosecute for passport offences and claims for asylum. Elyas Mohtasham, an Afghan national, began work with the British army in Helmand in 2009. He occupied a ‘high-profile’ position, according to his superior officers, and regularly put his life in danger to assist British troops in communicating with local people. The British army use such fluent English speakers to assist in training troops on local culture and to familiarise the troops with their new surroundings. They wear full military uniform and patrol with the troops. What set Mr Mohtasham apart from many interpreters is that he witnessed the deaths of five military police officers when they came under fire from insurgents posing as members of the national Afghan police force in 2010. After receiving death threats from the Taliban, Mr Mohtasham conferred with his family and took the decision to flee his country. He says that letters were left at his family home stating that the Taliban knew who he was and whom he worked for. These contained death threats. He chose to travel to the UK, he says, because he assumed he would be protected as a former member of the armed forces. Mr Mohtasham arrived in the UK in July 2011 without a passport. His was a story that will be familiar to many practitioners in the field of immigration offences. It involved the use of an ‘agent’ to arrange his travel with a false British passport through Dubai to London. He paid over $20,000 to the agent. The agent took his false passport from him before he landed. His Afghan passport was also given to the agent under instructions. It is precisely for this scenario that section 2 of the Immigration and Asylum (Treatment of Claimants) Act 1999 came into force. Practitioners will also be aware that section 31(1) – Immigration and Asylum Act 1999 – defences under the Refugee Convention do not apply to section 2. This is a worrying scenario, particularly when many of those who leave their country of origin to seek refuge in the UK often do not have a passport. The status of interpreters working for British forces abroad has for many years been a sensitive subject. A group of Iraqi interpreters is currently making a civil claim against the British government for failure adequately to protect them. Following the withdrawal of British forces in Iraq, the government offered asylum to several hundred interpreters and their families. This was part of a deal where they were given a choice, either to take a cash settlement or to come and live in the UK. The government has never made it an automatic right for interpreters to settle in the UK permanently. This contrasts with the practice in both Canada and the US where there is a scheme in place that guarantees interpreters working for forces abroad automatic asylum. Mr Mohtasham was charged with failure to have possession of an identity document when presenting himself for an asylum interview under section 2 of the act. Section 2 creates an offence of a person not having an immigration document for himself or any dependant children, at a leave or asylum interview on entering the UK. The offence is intended to discourage persons from destroying or disposing of their immigration documents while travelling to the UK, especially where the purpose of the destruction is to hide their identity, age or nationality in an attempt to increase the chances of a successful asylum claim or prevent removal from the UK. Section 5(c) of the act provides that it is a defence for the person to ‘prove that they have a reasonable excuse for not being in possession of the document as specified in section 2’. However, subsection 7(a) states that it is not a reasonable excuse to state that the document was destroyed or disposed of unless it was for ‘reasonable cause’ or ‘out of the control of the person charged with the offence’. Subsection 7(b) further defines situations that would not constitute ‘reasonable cause’, including ‘complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the UK, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice’. Thus the circumstances in which the defence can apply are restricted by this legislation. However, it is difficult to imagine a scenario whereby a genuine refugee would be expected not to comply with the instructions of an agent who is ensuring their safe passage to the UK, and to whom they have entrusted their safety. In a statement made by the prosecution, the decision to discontinue the charge was taken ‘in view of Mr Mohtasham’s contribution to the British forces in Afghanistan’. It remains to be seen whether this will apply directly to other interpreters from Afghanistan, especially after British troops begin to withdraw in 2013. On 17 August 2011, the Ministry of Defence released information following a freedom of information request in which it was confirmed that 650 local Afghans are employed as ‘patrol interpreters’. Some 21 interpreters have been killed while on patrol since 2006. Although the MoD puts the number of its local Afghan workforce suffering intimidation at only 30 of the entire workforce of 2,230, local sources claim that the tally of threat-related resignations is closer to 30 in the last year alone. Although the MoD is yet to release an official statement about its policy on asylum claims from Afghan interpreters, it is believed that this case sets a useful precedent (certainly with the press attention it has gathered) – namely that any interpreter working with the British forces would have little difficulty in convincing the court that they had a ‘reasonable cause’ under subsections 5 or 7. Andrew Morris is a higher rights advocate at Hine Solicitors, specialising in crime and fraud. He acted for Mr Mohtasham in his criminal and asylum proceedings.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs Don’t surprise me by saying that Directive 2005/36/EC on the recognition of professional qualifications is not on your bedside-table, to be consulted when you need to be entertained in the middle of the night. It is right up there with Stephen King and JK Rowling, a masterpiece in horror and wizardry. And now the European Commission is bringing out a new edition, with exciting additions. The proposed new section which will keep you looking at your curtains as the wind blows through them – is that a claw poking through? A gun aimed at your heart? – relates to partial access to the profession. This notion derives from the European Court of Justice case (C-330/03C-330/03) Colegio de Ingenieros de Caminos, Canales y Puertos, in which Giuliano Mauro Imo qualified as a hydraulics engineer in Italy and the Court held that he should be entitled in principle to be entitled to perform similar work in Spain, even if hydraulics was included in Spain under a wider and more general qualification of civil engineering. The Commission will now make it a duty to allow partial access if (a) differences between the professional activity in the home and the host member state are so large that in reality the applicant would have to requalify; and (b) the professional activity in question can objectively be separated from other activities falling under the regulated profession in the host member state. Partial access may be rejected by an overriding reason of general interest, such as public health. It is too early to know the extent to which partial access could apply to the legal profession, but listen out for the screams and footsteps running past your room. (If I may be allowed a small diversion here, to explain my approach to explaining the Directive to you, I want to say how difficult it is to translate European legislation into meaningful developments for practitioners on the ground. Selling Europe has rarely been undertaken successfully. Older readers may remember a newspaper called The European, launched by Robert Maxwell in 1990 as Europe’s first national newspaper, which turned eventually into a business newspaper, and then folded in 1998. Because Europe covers so many people, countries, languages, and systems, its language – to be universal – is alienating and complex, and nobody ends up feeling as if it applies to them. Sceptics say that it is because it has become too large, and drifted too far from its original market origins. Enthusiasts just have to accept the challenge of trying to sell it in fresh ways. We find that our own press releases from the Council of Bars and Law Societies of Europe (CCBE) rarely penetrate beyond the specialist press, because the mainstream does not know how to accommodate European concerns. Our big successes have been when we issued releases linked to large world issues such as the trial procedures for Saddam Hussein, or more recently the activities of the Troika in the bailed-out countries.) To return to the compelling pages of the Professional Qualifications Directive, the Commission has introduced a chilling section set in a graveyard where the corpses rise up and demand European professional cards. This is particularly likely to make UK readers shudder. Effectively, the Commission wants to introduce professional cards for all European professions, but, recognising the difficulties, proposes a voluntary system. In other words, each profession has to request inclusion in the system before an individual member of the profession can benefit. Once in the system, the cards will be issued through what is called the Internal Market Information System, which is a government-run electronic system linking up competent authorities in each member state. But – thrilling anti-climax – you can be pretty certain that lawyers are not covered by this section. We lawyers already have our own professional identity card issued by the CCBE, and the Commission believes that our card acquires its authority through the lawyers’ directives and not through the Professional Qualifications Directive. The final new part of interest to lawyers in the proposed changes to the Directive is the codification of the Morgenbesser (C-313/01C-313/01) judgment. Morgenbesser is the decision which allows trainees to move freely around the EU and have their qualifications and experience acquired to date recognised outside the home member state. There is some question as to whether the new wording succeeds in doing that, or does something else altogether – but that is for discussion during the legislative process. There are rumours that Stieg Larsson has not died. He fled from Sweden and is moonlighting for the European Commission, churning out thrilling amendments to the Professional Qualifications Directive.
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Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access
Subscribe now for unlimited access Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community