After The Final Act

iStock_000004177355Small[1]The DPP’s guidelines on assisting suicide are welcomed but are unlikely to make a fundamental difference to the way the CPS handles suspects, suggests Nicholas Kazaz

On 25 February 2010 Keir Starmer QC, the Director of Public Prosecutions, issued “The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”, which sets out the guidelines that must be followed in respect of cases of assisting suicide.


The publication of this policy arises as a result of the decision of the Appellate Committee of the House of Lords in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45.

In that case the House required the DPP to clarify his position as to the factors considered relevant for and against prosecution in cases of encouraging and assisting suicide. Clarification of the Crown Prosecution Service’s methodology in dealing with such cases has been needed since a number of high profile cases involving the disabled or terminally ill who have been unable to end their lives without assistance. Many of these cases involve the Dignitas Clinic, a centre for assisted suicide in Switzerland. Whilst, to date, over 100 British citizens have ended their lives at the Dignitas Clinic, a further 700 are members of the organisation. Some have chosen to make the journey abroad unaccompanied in order to avoid putting their family members at risk.

 The following question, raised by Debbie Purdy herself, is a useful example of what sparked the debate: “Does it mean that, if my husband pushes my wheelchair onto a train, if he buys my tickets knowing that I’m going to Switzerland to end my life, he is guilty of assisting suicide?”

When the DPP introduced his policy, he emphasised that it does not in any way “decriminalise” the offence of encouraging or assisting suicide. He also emphasised that the decision in Purdy did not change the law. Legislative change is a matter for Parliament. In fact, this is the present government’s position. Claire Ward, the Parliamentary Under-Secretary of State for Justice, holds that: “The government believe that any change in the law is an issue of individual conscience, and is rightly a matter for Parliament rather than government policy to decide.”


Mercy killing

Mercy killing and assisted suicide form part of the same debate. Whilst they are linked by the important moral issues raised, they are distinct in law. The intentional taking of another’s life is murder, unless a partial defence is applicable which would reduce the offence to manslaughter, whereas offering assistance for another to take his own life falls within the provisions of the 1961 Act.

More recently, Kay Gilderdale was charged with assisting suicide and attempted murder of her daughter Lynn, who suffered with ME. She was persuaded by Lynn to administer double her normal dose of morphine. When the overdose was ineffective, she injected her with air to cause an embolism. Although she pleaded guilty to assisted suicide, on the charge of attempted murder to which Mrs Gilderdale pleaded not guilty, she was acquitted. In an unusual move, Mr Justice Bean said: “I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows common sense, decency, and humanity which makes jury trials so important in a case of this kind.” The case of Kay Gilderdale highlights the difficulties in the relationship between assisted suicide and how “mercy killing” is treated in law.

 

The law on suicide

Section 2(1) of the Suicide Act 1961, as amended by s 59 of the Coroners and Justice Act 2009, enacts that it is an offence to do an act capable of encouraging or assisting the suicide or attempted suicide of another person with the intention so to encourage or assist. The offence carries a maximum sentence of 14 years’ imprisonment. Hitherto it was possible to bring charges under the Criminal Attempts Act 1981 in respect of a s 2 offence by virtue of para 58 of Sch 21 to the Coroners and Justice Act 2009. Section 2(1) of the 1961 Act now captures this offence. Before the 1961 Act came into force, it was an offence to commit or attempt to commit suicide; s 1 of the Act abrogated this rule of law. By means of s 2(4) of the Act any proceedings brought under s 2(1) can only be brought with the consent of the DPP.

 

The Purdy case

Debbie Purdy suffers from multiple sclerosis, for which there is no cure. She remains confined to a wheelchair. Ms Purdy’s case arises from her desire to know the circumstances in which her husband would be prosecuted if he were to accompany her to Dignitas, where she plans to die should her condition become unbearable. The DPP refused to say what factors he would consider in deciding whether it is in the public interest to prosecute those who assist people to end their lives in jurisdictions where suicide is lawful.

At first instance (see [2008] EWHC 2565 (Admin)) Ms Purdy applied for judicial review of the lawfulness of the DPP’s refusal to publish a policy on the circumstances in which a prosecution would be brought under s 2(1) of the 1961 Act, and made a claim under s 7 of the Human Rights Act 1998. Ms Purdy’s appeal to the Court of Appeal was disallowed (see [2009] EWCA Civ 92), but she was granted permission to take her case to the House of Lords. In the House, Lord Pannick QC, argued that (1) the prohibition in s 2(1) of the 1961 Act amounted to an interference of her right to respect for private life under art 8(1) of the European Convention on Human Rights, and (2) this interference was not ‘in accordance with the law’ as required by art 8(2) in the absence of an offence-specific policy being issued by the DPP.

In the Law Lords’ final case before moving to the Supreme Court, Purdy’s appeal was allowed unanimously on 2 June 2009. This obliged the DPP to issue a policy. Lord Hope of Craighead highlighted the real dilemma faced by Purdy: “If the risk of prosecution is sufficiently low, she can wait until the very last moment before she makes the journey. If the risk is too high she will have to make the journey unaided to end her life before she would otherwise wish to do so.”


The DPP’s final policy

During the period of consultation, which ended on 16 December 2009, 4,710 responses were received, of which almost 4,000 came from members of the public. Responses were received from members of both Houses of Parliament, lawyers, judges, public servants, doctors, faith representatives, and academics.

The final policy was announced on 25 February 2010. It requires that two stages must be satisfied for a prosecution to go ahead:
(1) The Evidential Stage. The prosecution must prove that the victim committed or attempted to commit suicide, and the suspect aided, abetted, counselled or procured the suicide or the attempt. If there is sufficient evidence, prosecutors must go on to stage two.
(2) The Public Interest Stage. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.

The following is a summary of the factors which prosecutors must now apply at the public interest stage:

Factors against prosecution

  • The victim had a “voluntary, clear, settled, informed” wish to commit suicide
  • Indicated that wish clearly and unequivocally to the suspect
  • The suspect was “motivated by compassion”
  • Had sought to dissuade victim
  • The suspect’s actions were of reluctant encouragement or assistance
  • Actions were of minor encouragement or assistance
  • Co-operated with police

 

Factors in favour of prosecution

  • The victim was under 18
  • The victim was physically able to undertake the act him or herself
  • Suspect unknown to the victim
  • The suspect has assisted more than one victim who were not known to each other
  • The suspect was paid by the victim or someone close to victim
  • The suspect was employed by a care home or other medical establishment
  • The suspect was a member of a group designed to provide facilities for people to commit suicide
  • The suspect had a history of violence or abuse against the victim
  • The suspect pressured the victim to commit suicide
  • The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide
  • The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present.

These public interest factors are now more focused on the motivation of the suspect rather than the characteristics of the victim. The DPP has made it clear that these  factors are not exhaustive; each case must be considered on its own facts and merits.

 


The guidance applied in practice

The guidance was applied in practice for the first time in early March, following the suicide of the conductor Sir Edward Downes and his wife in Switzerland. Their son booked the hotel room, accompanied his parents and stood to gain financially from their deaths. In a statement the DPP said that although there was sufficient evidence to charge the son, it was not in the public interest to do so. They had reached a “voluntary, clear settled and informed decision to take their own lives and in assisting them Mr Downes was wholly motivated by compassion”.  


The debate continues

The debate on assisted suicide has meanwhile continued. One such debate took place in March 2009 during the passage of the Coroners and Justice Bill through the House of Commons.

Patricia Hewitt tabled an amendment which would allow a person to travel with another person who had chosen to commit suicide, to a country where assisted dying was lawful. Her amendment was not debated, a matter about which some MPs expressed dissatisfaction. When the Bill reached the Lords, Lord Falconer tabled a similar amendment, which was defeated by 194 votes to 141.
Most recently, in March 2010, 30 minutes of Parliamentary time was devoted to debating the law on assisted suicide. One hopes that the new Parliament will allow sufficient opportunity for further debate.

 

The impact of the policy?

The publication of this policy should be welcomed as a step-forward in transparency of CPS decision making. While this policy has not caused legislative change, it has brought clarity to how law is administered. Those who assist suicide will be able to make an estimation of whether they might be prosecuted. Despite this clarity, I doubt whether we will see an increase in prosecutions. In the last ten years there are only 93 s 2(1) offences recorded. Yet, there have been only a handful of prosecutions. Professor Clive Seale, of Queen Mary University London, found there are more than 1,000 deaths a year in the UK involving voluntary euthanasia, constituting a criminal act.

Nicholas Kazaz works for Dominic Grieve QC, Shadow Secretary of State for Justice.

 

 

 

 

 


 

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