William Garton (2015) - University of Birmingham Law School
Substantive Elements
The offence of suicide in England and Wales was abrogated
under the Suicide Act 1961 (the ‘1961’ act),[1]
demonstrating a conceptual move away from the Judaeo-Christian view of suicide
as a sinful act of self-murder (‘felo de
se’),[2] to
viewing it as an act of free will that was better combated through counselling
and suicide prevention intervention.[3]
However the same legislation also created the offence of assisted suicide under
Section 2(1), stating a person who “aids, abets, counsels or procures the
suicide of another… shall be liable on conviction on indictment to imprisonment
for a term not exceeding fourteen years”.[4]
This was unprecedented as it is only offence in this area of law where the
accessory can incur liability when the principal does not commit an offence.
Section 2 of the 1961 Act has since been amended by Section
59 Coroners and Justice Act 2009. The
effect of this was to create an offence of doing an act which is “capable of
encouraging or assisting” another to commit or attempt suicide with the intent
that the other is encouraged or assisted. A person convicted is liable for a
term of imprisonment not exceeding 14 years.[5]
Procedural Operation
Section 2(1) of the 1961 Act potentially covers a wide range
of circumstances with varying levels of culpability. However to bring a
prosecution the consent of the DPP is required, which has led to this procedural
discretion being fundamental to the numerous attempts to change the law.
The two main forms of challenges to the law have been as
follows:
1) Section 2 of the 1961 Act is incompatible with her ECHR[6]
rights, in particular Article 8, the right to ‘private and family life’;[7] and
2) The DPP’s failure to formalise a policy of when, and in what
circumstances, assisting dying will be prosecuted breaches standards of fair
warning and consistency in the law.[8]
The main challenge relating to the incompatibility of the
1961 Act with the ECHR was by Diane Pretty in R (Pretty) v DPP.[9]
Pretty was seeking to challenge the DPP’s refusal to confirm her husband would
not be exposed to liability in assisting with her death arguing that refusal
infringed upon Articles 2, 3, 8, 9 and 14 ECHR. Her mental competency was not
disputed and she sought to draw precedence from the case of Re B.[10]
However the court distinguished this case, highlighting the difference between
passively allowing death through omission and actively assisting in suicide[11] and
relied on R v Brown[12] for
authority that a person cannot lawfully consent to anything more than ‘minor
injury’.[13]
Her appeal to the European Court of Human Rights (ECtHR) was
then rejected in Pretty v UK.[14]
Pretty’s most effective argument was on the grounds of Article 8 ‘Right to
Respect for Private and Family Life’; the others were dismissed. She argued
Article 8 also included a right to choose the “way she chose to pass the closing
moments of her life”.[15] The
court held that whilst her Article 8 rights had been engaged,[16] the
interference was justified under Article 8(2) as “necessary in a democratic
society” for the protection of the rights of others.[17]
Although there was no violation of Article 8, this case was the first time the
courts had recognised preventing a person from receiving assistance in ending
their life does constitute an interference with human rights. Consequently this
case was seen by many to be a clear demonstration that the law on assisted
dying needed to be reformed.[18]
However in 2008 the case of Daniel James[19]
demonstrated a shift in the court’s attitude. This case differed from Pretty in that James’ condition was not
life threatening, but the permanent tetraplegia follow a rugby accident.
Unusually, following the DPP published their reasons for the decision standing
that such a prosecution was not in the public interest.[20]
“While there are public interest factors in favour of prosecution… these are
outweighed by the public interest factors that say that a prosecution is not
needed”.[21]
Referencing[22]
para.5.7 of the Code for Prosecutors 2004,[23]
the DPP said:
“I consider that the
offence… under s.2(1) Suicide Act 1961 is unique in that the critical act –
suicide – is not itself unlawful. For that reason, I have decided many of the
factors in identified in the code… do not really apply in this case”
This was explicit recognition that very few, if any, of the
factors listed in the Code were relevant to assisted dying which left the law
in a very ambiguous state. There is an argument put forwards by Greasley[24]
in favour of this ambiguity stating a formal policy of non-prosecution is more
detrimental than not. However in response to this argument I argue that the current
position places an overly burdensome moral and ethical discretion on the DPP
without safeguards and without accountability.
This was also recognised in a later case of R (Purdy) v DPP,[25] where Purdy argued the law was
dangerously ambiguous and the DPP were under an obligation to provide guidance.
Lord Hope recognised that statistically the chance of prosecution were low - “By
the time of the hearing there had been 115 such cases. Of those cases only 8
had been referred [by the DPP]” and only 2 of those had been prosecuted.[26] The
court stopped short of holding the discretion under Section 2(4) contrary to
Article 8 ECHR and made an order requiring the DPP to “clarify what his
position is as to the factors that he regards as relevant for and against prosecution”.[27]
Prior to the final policy statement the DPP issued an
Interim Policy[28]
following an extensive public consultation. Interestingly, all factors were
supported except for one against prosecution regarding the status of the
victim.[29]
Namely, when the victim “had a terminal illness; or a severe and incurable
physical disability; or a severe degenerative physical conditional from which
there was no possibility of recovery”.[30]
Examining the cases in which prosecution for assisted dying was not deemed to be
in the public interest supports the idea that the physical condition of the
victim has indeed been considered relevant to the question of whether or not to
prosecute. So initially it seems sensible for the DPP to identify this issue as
having some bearing upon the exercise of prosecutorial discretion. Indeed in a
survey on who should qualify for assisted dying ‘those with severe disability
or illness’ were the most favoured.[31]
However many disability representation organisations and disabled individuals expressed
concern about this factor[32] on
the grounds that if two cases of assisted dying came to court with identical
facts, one person having a terminal illness or incurable disease, it would be a
factor in the favour against prosecution. That is to say, people with terminal
illness or incurable disease would be afforded less protection under the law.
Omitting this factor, the DPP published the Guidelines on Assisted Dying[33]
which contains 16 factors in favour of prosecution and 6 against.[34]
The Policy in practice
The Policy, rather than clarifying the existing law, has
left the law more uncertain. It went further than envisioned in Purdy and James and covered all possible offences under s.2 of the 1961 Act.
It states “Each case must be considered on its own facts and on its own merits.
Prosecutors must decide the importance of each public interest factor in the
circumstances of each case and go on to make an overall assessment”.[35] It
also recognises the factors are not exhaustive[36]
and even goes as far as to state that when the factors against prosecution are
present, the DPP may still “consider whether nonetheless a prosecution should
go ahead”.[37] The
DPP have effectively drafted the policy in such a way as to retain all
discretion they previously had prior to Purdy.
Arguably, it even extends their discretion by allowing the DPP to have regard
to factors not within the policy.
The new Policy claims to provide more protection for the terminally
ill than the previous state of the law. However since its implementation there
have been no prosecutions for amateur compassionate assisted dying (eg.
accompanying a loved one who travels abroad to die for compassionate reasons).
As of 1 April 2015 there have been 91 cases of assisted dying referred to the
CPS since 1 April 2009.[38] Of
these referrals, 65 were not proceeded with by the CPS, 13 were withdrawn by
the police, 8 are currently ongoing and only 1 has been successfully
prosecuted.[39]
This one successful prosecution was Kevin Howe,[40]
though his assistance was anomalously provided whilst under the influence of
alcohol and not compassionately motivated. As such there have been no
compassionately motivated prosecutions out of 91 cases since the Prosecution
policy was published. This is not to say that the Policy is not working; these
cases may simply have not been in the public interest to prosecute. However
this does show that there has been no change in the extent to the DPP’s
discretional remit. Even if statistically people who compassionately assist
others to take their life are not being convicted, it does not save them from
being prosecuted and having to relive the experience in the court room.
The current law forces those seeking an end to their life to
look for alternatives to exercise a control over their deaths. This can prompt
so-called ‘suicide tourism’[41]
where people travel to a jurisdiction where it is not unlawful. Most common
destinations include the Netherlands and Switzerland. However, there are
numerous cases where people cannot afford or are simply unable to travel.
During the second reading for the Assisted Dying Bill in the House of Lords,
Lord Falconer said "the current law provides the option of an assisted
death to those rich enough to go abroad; for the rest, it provides despair and
often a lonely, cruel death—and no adequate safeguards".[42]
This creates a dual legal standard where those who can afford to travel to
Switzerland can escape liability, whereas those who cannot and rely upon
assistance open the person assisting up to liability.
Conclusion
The current state of the law on assisted dying is in an
extremely precarious position. The Prosecutorial Policy establishes guidance
but allows new factors to be created without a legislative footing, leaving the
DPP an extremely wide discretionary remit. The Policy as a whole is structured
with retrospective factors for and against prosecution, none of which grant
protection before the actual act. In the words of Hale; ‘A major objective of
the criminal law is to warn people they are liable to prosecution if they act
contrary to it. People need and are entitled to be warned in advance so they
can behave accordingly’.[43] For this reason I believe failing to
enact legislation to ensure proper safeguards is indefensible.
Decision cannot and should not be made by the DPP and must be left to
legislation. The only way to rectify the current law is to draft and enact
proper legislation providing limited exceptions to the offence and proper
safeguards. The idea of enacting legislation might not be as radical as it might initially seem; Lord Falconer's Bill has progressed further than any of legislation of the same kind and in the words of Reidy, the DDP Policy is 'the first step towards
legalising assisted suicide'.[44]
[1]
Suicide Act 1961, s.1
[2]
Assisted Dying HL Bill, HL Committee (2nd Day), 16 January 2015,
Column 1017 (Lord Dobbs)
[3]
Westminster: The Church information office, Ought
Suicide to Be A Crime? A Discussion of Suicide, Attempted Suicide and the Law
(Church Information Office, 1959)
[4]
n(1) s.2(1)
[5]
Ibid s.2(1C)
[6]
Convention for the Protection of Human Rights and Fundamental Freedoms (1950);
herein ‘ECHR’
[7]
Sheila Reidy, ‘English law on assisted suicide a dangerous position’ [2012] 18
MLJI. 67, 68
[8]
Kate Greasley, ‘R. (Purdy) v DPP and the Case for Wilful Blindness’ [2010] 30
OJLS 301, 304
[9]
[2002] 1 AC 800
[10] Re B (Adult: Refusal of Medical Treatment)
[2002] 2 AER 449
[11]
n(9) 94
[12]
(1993) 2 All ER 75
[13] n(9)
110 (Lord Hobhouse)
[14]
(2002) 35 EHRR 1
[15]
Ibid 100
[16]
Ibid 67
[17]
Ibid 68-78
[19]
Keir Starmer, ‘Decision On Prosecution - The Death By Suicide Of Daniel James’
(9 December 2008)
<http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/>
accessed 23.12.14
[20]
Ibid
[21]
CPS Press Release, ‘No charges following death by suicide of Daniel James’ (9
December 2008)
<http://www.cps.gov.uk/news/latest_news/179_08/> accessed 23.12.14
[22]
n(19) para.28
[23]
DPP, ‘Code for Crown Prosecutors’ (February 2010),
<http://www.cps.gov.uk/publications/docs/code2010english.pdf> accessed
23.12.14
[25]
[2009] UKHL 44
[26]
Ibid para.30
[27]
Ibid 422-23 (Lord Hope)
[28]
DPP, ‘Interim policy for prosecutors in respect of cases of assisted suicide’
(2009) <http://www.cps.gov.uk/consultations/as_policy.html> accessed
22.02.15
[29]
More than 1500 respondents argued that it may be discriminatory to include
factors relating to the health and disability status of the victim. See; DPP,
'Public Consultation Exercise on the Interim Policy’ (2009), ‘Annex B: Equality
and Diversity Impact Assessment', para 25
[30]
n(28) para.9
[31]
Appendix 2
[32]
Leslie Keegan, 'Right to Die Bill is a Step in the Right Direction' [2003] SJ,
22
[33]
DPP, ‘Policy for Prosecutors in Respect of Cases of Encouraging or Assisting
Suicide’ (2010) <http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html
> accessed 22.02.15
[34]
Editors, ‘Legal News: Assisted-dying guidelines clamp down on medically-aided
suicide’, [2010] SJ
<http://www.solicitorsjournal.com/news/public/care/assisted-dying-guidelines-clamp-down-medically-aided-suicide>
accessed 17.03.15
[35]
n(25) para.39
[36]
Ibid para.47
[37]
Ibid para.39
[38]
This date it taken to coincide with the introduction of the Coroners and
Justice Act 2009
[39]
Sally Lipscombe, ‘Assisted Suicide’ House of Commons Library Standard Note
SN/HA/4857, 3 <http://www.parliament.uk/briefing-papers/SN04857.pdf>
accessed 12.03.15
[40] R
v Kevin James Howe [2014] EWCA Crim 114
[41]
Charlie Cooper, ‘The 'suicide tourists': 126 Brits opt for assisted death in
Switzerland since 2008’ (21 August 2014)
<http://www.independent.co.uk/life-style/health-and-families/health-news/the-suicide-tourists-126-brits-opt-for-assisted-death-in-switzerland-since-2008-9681696.html>
accessed 12.03.15
[42]
Assisted Dying HL Bill, HL Second Reading, 18 July 2014, Column 777
[43]
n(25) 59 (Baroness Hale)
[44]
n(7) 74
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