Assisted suicide guidelines – 3 years on

The President: Ladies and gentlemen, let me introduce Mr Keir Starmer, who is, I am sure you all know, Director of Public Prosecutions. I will summarise a glittering CV briefly. He started at Doughty Street Chambers, and I have been there, so I know where that is. He was heavily involved in pro bono work, particularly challenging the death penalty. And regarding being Director of Public Prosecutions “sets the vision and policy for the Crown Prosecution Service” which is an organisation of over seven thousand people. The Director is the public face of the Service, called upon to explain and justify its decisions and policies through the media, and I assume to deal heavily with politicians, so that is why I won’t be applying for the job. But we look forward to hearing your talk, which is about assisted suicide.

Mr Starmer: Thank you very much and good evening. It is a privilege to come here tonight to speak to you about assisted suicide, a very interesting and a very important subject, on which there have been some developments whilst I have been the Director of Public Prosecutions.

On 12 March 2007, a young man called Daniel James was injured during a training session at his rugby club. As a result, he was diagnosed as tetraplegic, paralysed from the chest down, with no independent hand or finger movement. By November of that year, his medical consultant concluded that it was unlikely that there would ever be any significant improvement in Daniel’s neurological status and that there was “no treatment available to either aid or procure recovery”. Daniel fought that prognosis; he wouldn’t accept it, and he fought it hard; but eventually he was forced to confront it, and for him it spelt a future which he could not contemplate or bear. His life expectancy was normal life expectancy.

So, in February 2008, Daniel contacted Dignitas in Switzerland requesting assistance to take his own life. Before and after this time, Daniel was being assessed by a Consultant Psychiatrist and in a report in March 2008 that psychiatrist concluded that Daniel was “fully aware of the reality and potential finality of his decision, [that he] displays clear, coherent, logical thinking processes in order to arrive at his decision and has clearly weighed alternatives in the balance”.

In a further report in July of that year, his Consultant Psychiatrist concluded that Daniel “clearly understood that no other parties, be they professionals or family members, wished him to pursue this course of action and was clearly aware that he could reverse his decision at any point. He remained firmly of the opinion that support from any agency would not be helpful for him or change his decision.”

So in July 2008, despite repeated and concerted attempts by various people, including his parents and medical professionals, to persuade him to change his mind, it was agreed with Dignitas that Daniel would take his own life at their clinic in Zurich. He travelled there and committed suicide, with his parents at his side, on 12 September 2008, aged 23 years.

The actions of Daniel’s parents, who had been at his side, were investigated by the police. They agreed that they had assisted Daniel, in sending documentation to Dignitas, that they had made payments to Dignitas from their joint bank account, that they had made the travel arrangements for Daniel to travel to Switzerland and they had accompanied him on the flight.

Against that background, it fell to me, less than a year in office, to decide whether Daniel’s parents should be charged with the offence of assisted suicide. I decided that there was sufficient evidence for a realistic prospect of a conviction against Mr and Mrs James. The offence of assisted suicide is relatively easily made out as any act or assistance to someone to commit suicide, and they were acts of assistance. But I went on to decide that a prosecution was not in the public interest and that no further action should be taken against Daniel’s parents or against a family friend who had also assisted him. Whilst on the one hand, there were clearly public interest factors in favour of prosecution, not least the seriousness of the offence, which carries a maximum penalty of 14 years, I determined that they were outweighed by the public interest factors that say a prosecution is not needed.

In reaching my decision, I gave careful consideration to the Code for Crown Prosecutors, which guides prosecutors in the decision-making process. In particular, but not exclusively, I pointed to the fact that Daniel was a fiercely independent young man who was not influenced by his parents to take his own life and the evidence indicated that he did so despite them imploring him not to do so.

Daniel’s case not only shows the difficulties of these cases, but it also shows how the Crown Prosecution Service (CPS) dealt with these cases on a case-by-case basis in 2008.

The test that we applied in his case was the test that we apply in all cases when deciding whether an individual should be prosecuted. It is a two-part test. The first part is to ask whether there is sufficient evidence to provide a realistic prospect of conviction against the suspect, and, second, whether it is in the public interest to proceed with a prosecution.

As you will know, a year after Daniel’s death, I issued more specific guidelines on what prosecutors should consider when making decisions in cases of this sort. Tonight, I want to talk you through what led to the guidelines being produced, the process that we went through, what has happened since and what the wider impact has been of the guidelines on public prosecutions.

As to what led to the guidelines, in 2009 a woman called Debbie Purdy sought clarification from the Director of Public Prosecutions – she actually sought the clarification from my predecessor – as to which factors would be taken into account in deciding whether or not to bring a prosecution under Section 2 of the Suicide Act 1961 (the offence of assisted suicide). Miss Purdy argued that the Code for Crown Prosecutors was all very well, but it was insufficiently precise to provide her with the information she needed. In essence, what she wanted to know was whether if her partner accompanied her to Dignitas when the time came he would be prosecuted for assisted suicide. That case went all the way to the Appellate Committee of the House of Lords, and the House of Lords found that the guidance in the Code for Crown Prosecutors was not sufficiently specific and that I should “clarify my position as to the factors that I regard as relevant for and against prosecution in deciding whether or not to bring a prosecution under the Suicide Act”. As a footnote, that was the last ever judgment of the House of Lords before it moved to the Supreme Court at the beginning of the next legal term, a little gift for the Director of Public Prosecutions.

Now, obviously the CPS can’t change the law, only Parliament can do that, but we do make decisions about prosecutions and, in deciding whether a prosecution is in the public interest, we do consider a range of factors, and the challenge from the Law Lords was to make those factors clear and specific and to make them public. The approach I took was to produce interim guidelines, in the first instance, and we produced them pretty quickly, in September 2009. That was about 10 weeks after the judgment. In my view, given the requirement of the Law Lords to have a policy, I thought we should have an interim policy in place pretty quickly, because there were other people who were in a not dissimilar position to Miss Purdy.

So those guidelines were issued setting out the approach that we would take, and they were interim guidelines. I won’t quote them in total to you, but the general approach was to set out the factors that would tend in favour of prosecution and then the factors that would tend away from prosecution, and, just to give you a flavour, in the factors tending in favour of prosecution we looked at the age of the victim. If the victim was essentially a child, we thought that was a factor in favour of prosecution; if the victim did not have the capacity to make an informed decision about what they wanted to do, that was a factor in favour of prosecution; and if the victim did not have a clear and settled and informed wish to commit suicide, that was a factor in favour of prosecution. We also included this, which became significant as the consultation process went through, as a factor in favour of prosecution that the victim did not have a terminal illness, a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. And we had, as it were, on the other side factors against prosecution, that the victim did have a clear and settled intention to commit suicide, etc., and, to marry up with the factor in favour, that the victim did have a terminal illness, etc. So the basic thrust was: did the victim have a clear and settled intent to commit suicide, did the victim have a terminal illness or severe and incurable physical disability and did the suspect act out of compassion? They were really the three driving factors.

That interim policy entered into force straightaway but was subject to a 12-week consultation in which we invited views on the policy. I recognised that this was an extremely sensitive area of the law. There were many sincere and deeply held views on both sides of the debate and, unsurprisingly, we received many responses. We had 4700 responses from interested individuals and organisations, and that is to count the Catholic Church as one respondee, which you may think is a little ungenerous when simply counting the number of responses. We had a huge response, both from individuals and organisations, from churches, and I had lots of very interesting meetings with individuals who held very, very strong views one way or the other. The responses included a number of doctors and other healthcare professionals, academics, lawyers, etc.

For most of the policy, there was strong support. So, for example, the factor in favour of prosecution that the suspect persuaded, pressurised or maliciously encouraged the victim to commit suicide, there was almost overwhelming support that this should remain in the guidelines and should be a powerful factor in favour of prosecution. But interestingly, and from those who were both in favour or against assisted suicide and/or the policy, there was a very strong view that the personal characteristics of the victim should not be relevant and that, in particular, their health and disability characteristics or status; in other words, that we should take out of the guidelines the reference to whether the victim had a terminal illness, etc., and in all other respects there was broad support for the guidelines, save that, so far as factors against prosecution were concerned, there was a strong view that this should be focused on the suspect and not the victim.

So the final policy was drawn up and was issued in February 2010, and that is the policy that has remained in force until now. That policy makes reference to the age of the victim, again a factor in favour of prosecution, if the victim is under 18, if the victim is a child. It makes reference to the victim having a clear, voluntary, settled and informed decision to commit suicide; if that is the case, it is a factor against prosecution; if not, a factor in favour. Capacity remained. If the individual had the capacity to make an informed decision, that was a factor against prosecution; if not, that was a factor in favour. As for motivation, we asked the question whether the suspect was wholly motivated by compassion, and, if so, that was a factor against prosecution; if not, a factor in favour of prosecution.

We had to deal very carefully with the question of money, because there were strong representations to us as to what we should do if someone fell to gain through the death of the individual in question. Now, that was very difficult, because in many of the cases we looked at the assistance was given by the very closest family members and, in some circumstances, in that capacity they fell to inherit whatever it was that the person who committed suicide had to leave. So we dealt with that by questioning whether the motivation for the assistance was because the individual would stand to gain in some way from the death. So the question was not: as a matter of fact did they gain or not, but whether or not their motivation was that they would gain.

But what we left out of the final version of the guidelines was any reference to whether the victim had a terminal illness, a severe or incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. So that has gone completely from the interim to the final guidelines.

Those guidelines, as I say, were issued in February 2010 and they have remained in place ever since. It is important to stress, as is obvious from the earlier case of Daniel James, that the discretion for prosecutors is not new; we have a discretion in every case whether or not to prosecute and it has never been the case in England and Wales that every offence is prosecuted simply on the basis that there is sufficient evidence. The policy provides additional guidance to prosecutors as to how to apply the law in force.

Well, what has happened since then? Does the policy work in practice? It is obviously a policy which prosecutors are required to use every time they take one of these decisions. In order to ensure consistency, we require all of the assisted suicide cases that are being investigated by the police to come into CPS headquarters, currently in Rose Court, on Southwark Bridge, where they are looked at by my special crime team and ultimately by me. Although we had set out the factors for and against prosecution in the public interest, we made it clear to prosecutors that making a decision is not a question simply of adding up the factors in favour and adding up the factors against; in other words, it is not a tick box exercise. Every factor has not only to be considered but also weighed, and in some cases a single factor can outweigh all others, and we require prosecutors to make an overall assessment having weighed all the factors.

Now, from 1 April 2009 until 1 March 2013, so from the beginnings of the case through the House of Lords until a couple of months ago, there were 68 cases that have been referred to the CPS for a decision in which the police have investigated assisted suicide and passed the file to us on the basis there was sufficient evidence to take a decision. Of those 68 cases, 49 were not proceeded with by us, whilst 10 cases were withdrawn by the police on the basis that they didn’t think that they would be sufficient under the guidelines. There are currently nine cases that we have on our files that we are looking at. Seven are still subject to investigation by the police, one resulted in a murder charge and one has been referred back to the relevant CPS area.

Now, in order to ensure transparency, we have on our website not only the policy on assisted suicide but also details of the decisions, the numbers and, where possible, I have given a short public statement setting out why a particular decision has been taken. We don’t give a public statement for all cases, but we will if the case has been in the public domain at all. Giving a statement in all cases, there is the risk that the privacy of the individual who is not going to be prosecuted will be breached.

Some people have suggested that because there has been no prosecution under the guidelines, the effect has been essentially to decriminalise the offence of encouraging or assisting suicide. That is not the case. The offence of encouraging or assisting suicide remains a serious criminal offence under the Suicide Act 1961 and, as I say, it is punishable by up to 14 years' imprisonment and the policy does not provide a blanket immunity from prosecution. We are unable to, and do not, give prospective indications to individuals about whether they will be prosecuted or not. Indeed, as the policy makes clear, a prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those in favour, each case obviously having to be considered on its merits.

I am pleased to say the policy has attracted support. Sarah Wootton, the Chief Executive of Dignity in Dying, hailed the guidelines as a “victory for common sense and compassion”. In a debate in the House of Lords on the 13 February 2012, secured by the former Leader of the House, Baroness Jay, there was a clear division between speakers on whether the law should be changed to allow doctor assisted dying, but there was support for the guidelines. Baroness Finlay described the policy as “clear, firm and compassionate”, and on 27 March 2012, in the House of Commons debate on the guidelines, MP Joan Ruddock said “The policy is sensible, humane and provides clarity on how the law is applied.”

There has been, as many people here will know, a Commission on Assisted Dying, chaired by Lord Falconer, and it was in January 2012 that the Commission issued a report, which criticised the operation of the guidelines in certain circumstances; for example, the conduct of medical doctors and other healthcare professionals when caring for terminally ill patients and uncertainty about what actions may be subject to a prosecution. But nonetheless, besides the criticism, the report still concluded that the policy should continue to be applied to those cases, including when involving people who are not terminally ill. The Commission also acknowledged that the legislative change being sought by the Commission was their prime consideration.

There have, of course, been legal challenges, and they have formed two types. The first is the challenge to say that there should be some provision for medical care providers, some guidance for doctors and other health professionals. And the other challenge, more profound, was the challenge that was brought by the late Tony Nicklinson. He sought a declaration (what he wanted the court to find) that it would not be unlawful, on the grounds of necessity, for his doctor to terminate his life; alternatively, a declaration that the current law of murder is incompatible with the Human Rights Act.

That challenge has now been taken up by Tony Lamb, because, as you know, Mr Nicklinson died shortly after the judgment in his case refusing his declaration. Mr Lamb, now together with Mr Nicklinson’s widow, is continuing the challenge against the High Court ruling. Mr Lamb is paralysed to the extent that he would not be able to take the final steps himself. So this is a challenge, as was Mr Nicklinson’s, on behalf of individuals who cannot commit suicide because they haven’t got the ability to do so, so the only way in which they can end their lives early is if somebody else carries out the final act, and under our law that is murder or assisted suicide.

Mr Lamb has got no feeling in any of his limbs, save for some slight movement in his right hand. He lives in constant pain. In his statement to the court in support of his challenge to the guidelines he says “I am in pain every single hour of every single day. I have lived with these conditions for a lot of years and have given it my best shot. Now I feel worn out and I am genuinely fed up with my life. I feel I cannot and do not want to keep living. I feel trapped by the situation and have no way out. I am fed up of going through the motions of life rather than living it. I feel enough is enough.” The issue, of course, is for him that, if he is to die, he requires assistance and he wants the assistance of a doctor. That, as I say, is a deliberate act of killing and comes under the offence of murder.

The defence of necessity does, of course, exist in our law and has been described in the case of Re A, which was about conjoined twins, you may remember, about 10 years or so ago. The court had to consider whether or not it would be murder to carry out various actions to separate the twins in the knowledge that one of them would die, almost certainly, and there the court said of necessity:

An act which would otherwise be a crime may in some cases be excused if the person accused can show it was done only in order to avoid consequences which could not otherwise have been avoided and which, if they had been followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil, that no more was done than was reasonably necessary for the purpose, and that the evil inflicted was not disproportionate to the evil avoided. The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat the body.

And you will probably remember that case from the late 1800s, where two sailors were shipwrecked. They had the cabin boy with them on the boat, they were on the boat for a very long time, they were in a desperate situation and they drew lots, having in fact rigged the lots so that the boy had the shortest straw, he promptly produced the shortest straw and they killed him. Shortly thereafter, as luck would have it, they were in fact rescued. The defence of necessity was unavailable to them. They were tried for murder and because the only sentence that could then be passed for murder was hanging; there was no discretion in the court; they were sentenced to death. Happily, that sentence was reprieved and they served six months of their legal sentence.

But necessity is a very narrow concept in our law. The Court of Appeal will have to consider it in the challenge to the guidelines, and I say no more about it, but it seems to me that if the law of murder is to be amended that really has to be a matter for Parliament to debate and decide upon, rather than the Director of Public Prosecutions through a policy.

So much for the guidelines themselves: a number of cases; no prosecutions to date; some challenges, which so far have been successfully resisted. But perhaps more profoundly there is another back story here, and that is that the House of Lords in the Purdy case were not only requiring me to produce guidelines about assisted suicide for the first time, they were requiring the Director of Public Prosecutions to publish an offence-specific set of factors for and against prosecution for the first time; this had never been done. Until that case, we had a general code for prosecutors that applied to all offences and we had never gone down the path of saying for specific offences “these are the relevant factors”. The fear was that this would begin to be used as a charter by those that might want to commit offences by looking at the factors that we might take into account and making sure that they were on the side of the line which would be against prosecution rather than the side of the line which would be for prosecution. But, emboldened by the assisted suicide guidelines, we have in fact followed the same process for policies on other issues of public interest.

So, for example, when the investigations began into hacking, as a result of the reopened Leveson Inquiry, we found ourselves in the position, in the middle of last year, where we had up to 50 individuals on bail, many of them journalists, for alleged offences committed in the course of their work as journalists. Now, until recently, the times we have to consider a journalist have been very rare, but suddenly we found ourselves in a position where we had to consider what to do with the large number of individuals who were then on bail, some of whom are still on bail, some of whom have had decisions taken in relation to them and the public interest clearly is very important, because journalists sometimes break the law in the public interest.

I can give you two examples that I think nobody would disagree with. Although I have never had to consider it, because I have never had a file, it occurs to me that the circumstances in which the Daily Telegraph came to publish MPs’ expenses may not have been entirely lawful. It also occurs to me that if the first prosecution arising out of that scandal was of the journalist for breaking it, people might think that this was unhelpful and unhealthy in a modern democracy.

To give another example, soon after the Bribery Act 2010 came into force in this country, The Sun thought that they would test it, because they thought they had uncovered a court clerk in a London magistrates’ court who was susceptible to bribes to make speeding offences go away. They were right. They approached the said clerk in the car park of the court and offered him £500 to make an offence go away. He happily accepted and attempted to make the offence go away, at which point The Sun passed the information over to the police. The clerk was promptly arrested and goes down in history as the first person ever prosecuted under the Bribery Act 2010. But to have prosecuted then The Sun journalist for the offence of offering the money seemed to us to be contrary to the public interest. So in that case we decided that we would issue offence-specific guidelines, not dissimilar in structure and style to the assisted suicide guidelines, indicating when we would or would not prosecute journalists and recognising that there is a public interest in journalists going about their business of exposing wrongdoing and in putting information before the public.

Then possibly the most recent example of guidelines not dissimilar to the assisted suicide guidelines are the guidelines that we recently issued on how we would approach offences using social media. This is another story for another time, but any grossly offensive message sent via Twitter or Facebook, or any other social media, is a criminal offence, as is any message sent by social media or email or telephone which is false, if the purpose is to annoy someone. That has been on our statute books for over a hundred years. It was first introduced when telegrams were the quickest way of communication across the country, but has remained unaltered, and so any grossly offensive message on Facebook or Twitter or social media, any false message which is intended to annoy, is an offence. Now, I don’t know how many of you use social media or are familiar with what is out there, but, firstly, there is a lot of it. There are 350 million tweets a day, and that is just on Twitter. There are many millions of communications on Facebook. Now, on my reckoning, a percentage, even a small percentage, of those communications probably fall the wrong side of criminal law. A number of them are grossly offensive and certainly many of them are false with the intention to annoy, and if we prosecuted all of them we would probably have more social media prosecutions than any other type of offence in our magistrates’ courts day in, day out. I, however, took the view that this wasn’t healthy in a modern democracy that prides itself on free speech, and therefore we crafted guidelines on when we would prosecute those cases, again based on the assisted suicide model; namely, with factors tending in favour of prosecution and factors tending against prosecution.

So the story of the guidelines on assisted suicide are not only the story of how we have applied the current law using guidelines but also how we have developed the very notion of guidelines in such a way as to apply to other offences, and my own view is it works well. I think if it is right that a prosecutor has a discretion whether to prosecute (and I think it is right), that is an important and powerful discretion. It is the discretion to choose amongst the people who might be prosecuted those who will actually be prosecuted. It impacts obviously on the suspect profoundly; it impacts on the victim and impacts on the public. It seems to me if that power is to be exercised properly and in a way in which I and others can be held to account, the only way to do that properly is to say up front how you are going to approach a problem, and set it out for all to see, and then to give reasons afterwards so that people can test whether you have actually made your decision in accordance with the policy that you said would govern your decision making, and in way, I think, you can achieve accountability, which must go with the exercise of discretion.

So that is the short story of the assisted suicide guidelines, both specifically and more generally.

Thank you very much. (Applause)

Discussion

The President: Thank you very much indeed for a fascinating talk about what is a fantastically difficult subject. I am sure there will be questions. Please give your name for the record.

Dr Martin: I am Chris Martin, medic, lawyer and now medico-legal consultant. It is an area I have been looking at for about 30 years, but maybe I can just start by suggesting to the Council that the idea that we revisit the naval case, in light of the historical forensics the gentleman was mentioning earlier, might be quite a good start a hundred years later. In fact, it was featured on television last night, if anybody saw it. It was actually quite a good documentary. On my last visit here, on the following day I went to the Science Museum and I found in a corner the original suicide machine, which was used in Australia, Northern Territory, from 1997 to 1999. It raised an issue with me. Would the programmer who wrote the software for that be liable to prosecution, given the criteria you have mentioned thro’ Purdy, thro’ James, the guidelines, Nicklinson and Lamb, because clearly it was foreseeable and the whole reason for writing the software was to assist suicide?

Mr Starmer: Yes, a very, very good question; a very good question for this reason. Suicide obviously once was an offence, but has not been an offence for many years. The subsidiary offence of assisting or aiding and abetting suicide is the only example in the law of an encouragement offence predicated on an act which is not itself unlawful, the only one. All the others are encouraging/aiding and abetting an offence. This is aiding and abetting something which is not an offence, and herein lies the problem, because when the courts have been called upon to interpret whether acts of encouragement come within the criminal law, in all of the case law they have said “Yes, make it broad; make it broad; because what we want to do is stamp out the offence that is being encouraged.” So when it comes to aiding and abetting someone to carry a firearm to carry out a robbery, the court have no problem with very minor acts of assistance being criminal, because they recognise that they are acts that support a criminal offence. Turn that on its head, in the field of assisted suicide, the notion of encouragement, aiding abetting, etc., is precisely the same. So you have a very broad category of assistance that is captured, because you have all of the activity which, if carried out in furtherance of an offence, would be criminal, and therefore we have had to consider whether or not individuals who transport people to the airport to go to Dignitas are aiding and abetting and assisting; those that provide some of the finance; those that assist by advising how to contact Dignitas. Now, all of those are caught by the broad definition of assisted suicide, and that is part of the problem, because if you have got such a breadth of offence, then you surely have to have a discretion to take out those cases which nobody would suggest ought to be prosecuted.

Dr Martin: Would it matter if the individual had made a living will prior to becoming ill in which he or she said “I hereby give my consent to having assisted suicide,” and, if somebody did assist, could their property be taken away because of the proceeds of crime by paying for the tickets, and so on?

Mr Starmer: The fact that somebody made a living will would make no difference whatsoever, because in many of these cases, we are dealing with individuals who are imploring the suspect to commit the offence. Daniel James is a very, very interesting and tragic example. Daniel James’ mother fought him every step of the way not to take his life. She said “If you don’t go to Dignitas I will do this; every day we will do something that keeps you interested, keeps you alive.” etc. “I will not go with you; I will not go with you,” and in the end he said to her “I don’t want to die alone,” and she couldn’t stand that and went. So he was imploring her to go, imploring her to go. So whatever his state of mind makes no difference. If he is committing suicide and she assists, that is the offence. As to proceeds of crime, just to complete on that, proceeds of crime only arise if someone is prosecuted and convicted, and therefore, since there have not been any prosecutions, it is not an issue we have had to address. What the guidelines make clear is if the motivation is greed and if there is real pressure put upon an individual to commit suicide, in circumstances where it is not clear that they had a settled intention to do so, then we would prosecute, and in those circumstances I would have thought proceeds of crime might become quite relevant. If you have put pressure on someone to commit suicide to get their money, I would have thought that most people would say that is a case that should be prosecuted, and if it is and it results in a conviction, then the proceeds ought to be taken, but we haven’t had one of those cases.

Ms Lee: Linda Lee, solicitor. I think I should start by saying my concern is that I would not want to see an extension of assisted suicide, and my concern about that is that people are often motivated by fear or by lack of availability of suitable end-of-life care, which is a post code lottery. I suppose I am particularly troubled by the shift from your original consultation where you had an objective test; that is, what is the state of the person who is going to commit suicide, what was their medical issues to a subjective test of motivation of the person assisting, and motivated by compassion. I think the subjective test would be hard for a jury to assess, but perhaps you could reassure and expand more on how your team assess motivation of the person assisting in perhaps the greyer areas than the case you mentioned of the mother of the paraplegic boy.

Mr Starmer: Yes. Just two things. The question of whether the reference to terminal illness, severe or incurable physical disability or severe degenerative physical condition should stay in or stay out was most keenly contested by groups who fell into that category (a very interesting part of the history), because they said “You’re offering us less protection than everybody else, because if somebody assists us, then that is a factor against prosecution, whereas if they assist, as it were, a healthy and able bodied person that is a factor in favour of prosecution.” So, unusually, it was the very group that in a sense we were concerned about who said “We don’t want that category in there.” That is the first thing. The second thing, about motivation, when we issued the guidelines there was much comment about whether motivated by compassion wasn’t to introduce into the law something which isn’t usually dealt with by the law, motivation, but that is completely wrong. I mean, motivation is all over the law, working out why people did things, what their intention was. Dishonesty is a form of motivation, and therefore the mere fact that we ask our prosecutors to assess motivation is not in itself an unusual fact. When somebody does something that is only criminal if it is dishonest, we have to assess why we think they did it and whether it crosses the threshold of dishonesty, and so the concept is no different. The reference to compassion is obviously difficult. To be honest, it hasn’t been difficult in practice, because in most of the cases it has been clear what the motivation was. Very often when you investigate these cases, there are clear communications between the victim and suspect about what the victim wants and a picture can pretty quickly be built up. It is not always easy, but generally that has not been a particular difficulty, and I don’t think it will be a difficulty for the jury. If Daniel James’ mother had been put before a jury, I don’t they would have spent very much time working out that she was motivated by compassion, and many of these cases are very near relatives who are clearly motivated by compassion. There will be difficult cases, I don’t dispute that, and I can understand why there are concerns about extending the law too far and why people are fearful of the consequences. I think that is good example of a very difficult issue. But my own view is that when you come across a difficult issue you have to have the courage to make a decision, not lack the courage and simply put everybody before the court for juries to distinguish. I think you have got to work it through and make a decision. The purpose of publishing reasons and explaining is so that others can judge whether we have got it right or wrong.

Dr Baker: Larry Baker, physician. How do you define realistic as in realistic prospects of conviction, and what is your concept of the public interest?

Mr Starmer: Well, realistic is often thought to be more than an evens chance. It is not quite that. It is really to assess, if the evidence is put before a court, and taking into account what the defence case is, so looking at it realistically rather than just looking at our own evidence, is it more likely than not that a jury or court would convict? But it is to remind prosecutors that when you assess a case you don’t just look at your own hand, which is always tempting, and say “Well, we are bound to win that.” You look at the defence hand and you say “Well, looking at our hand and their hand together, what is the realistic prospect of this?” and analysing as best one can how the evidence might play: is there a realistic prospect, a reasonable chance? As to what is the public interest, that is a very, very good question. It is very important, I think, that prosecutors do have the discretion not to prosecute in the public interest, otherwise we would have been forced to prosecute Daniel James’ mother, and I don’t think anybody has ever suggested, whatever view they have taken of assisted suicide, that this is a good idea, and there are many other examples. I don’t think it is a good idea to prosecute every 11-year-old caught shoplifting even if it is the first offence, so you need a discretion. Discretion is in the public interest. The way we have approached it is to set out in the Code for Prosecutors the factors that are important, and broadly speaking they are seriousness, culpability, age, vulnerability, the sort of things you would expect a prosecutor to take into account. The purpose of the assisted suicide guidelines is because the House of Lords said “Well, that is all very well, but you need something more specific,” and so if you like the public interest is what is set out in those guidelines. It is not an exhaustive list and you can always guarantee when you go down this path that you will get a case which is the very next factor than the one that you were left with in the guidelines, but they are set out so that people can see what we say is the public interest in this.

Mr Gardiner: I am Bill Gardiner, lawyer. I practise very late in life and write LPAs for people and I am asked this question about advance decisions and whether that forward-thinking consent would enable assisted suicide, but my question is mainly about the sort of things I am asked by clients which might, I am going to say, be rudely practical, and they will say “Well, Dignitas has demonstrated its competence for something which is dependable, painless and lethal, and why do I have to travel?” Now, I actually don’t know the law on this, but I assume it is in the guidelines which you have drawn, which, by the way, I approve of, because you have got to give it a go, but most of the people who ask me these practical questions are saying “Why should I have to travel?” and when I was in a more commercial setting, which was actually the oil industry, there was no remarkable example of a monopoly on competence, like Dignitas, so it miffs me and I am unable to actually think this through logically or legally and I would like some help.

Mr Starmer: Can I give it my best shot, because we have thought about this long and hard, and it comes up in different ways. Either people say “Why do I have to travel to Dignitas?” or, put a different way, “Why do I have to rely on nearest and dearest, who may not help me in a very effective and painless way, when I could get health professionals to help me in a much more effective and painless way?” and the analysis (and you will judge whether it holds water) is this: Parliament has resolutely clung to the law of assisted suicide and refused to amend it or repeal it. There have been a number of attempts to amend it, as everyone will know, and they have all been voted down. I have to uphold the law, therefore I cannot introduce a policy which would by the back door introduce an amendment which Parliament has rejected, because to do that would undermine the sovereignty of Parliament. If Parliament says we are not going to have a category of cases where it is not an offence, for example, professionally assisted suicide, the DPP can’t do it by the back door by saying “Ah, well, I’ll indicate that I would never prosecute any of those cases.” We took the view that if you allow by the back door clinics to be set up in this country you would very quickly have established a trade, profession, call it what you like, in assisted suicide, and if we never prosecuted those cases, or indicated that we would never prosecute those cases, we have effectively re-written a law which says it is an offence unless you are within one of the clinics, and therefore we have stuck with the notion that these are the factors for and against to be applied on a case-by-case basis according to the situation as they confront any given individual. Now, I don’t pretend it has been easy. I mean, I quite understand the argument that says either “Why should I travel to Switzerland?” or “Why can’t there be a professional service emerge in this country?” but it seems to me that if they are powerful arguments in support, then those arguments would simply have to go into Parliament, I am afraid, for an amendment to the Act. I think for the DPP to introduce that amendment by the back door is to overstep the mark and I think would undermine the guidelines, which are very clearly about exercising discretion, rather than creating exceptions to the law. It is a fine line, I accept that; it is a difficult one and it throws up cases which are not easy to resolve, but I think I think it is the right line.

The President: One more question, I think, from Mr Leigh.

Mr Bertie Leigh: Bertie Leigh, lawyer. Mr Starmer, thank you very much for a fascinating address. You have adumbrated a distinction which I don’t quite understand. Upon the one hand you said that there is changing the law created by Parliament that you cannot do. The second is that you have identified a category of case that you think will not succeed and you think that a jury would refuse to convict on certain facts, and I understand that as well. That is the job of your office, to identify those cases that will not succeed, and I suggest that the first case you described to us is a case where one could be fairly confident that any sensible, well-directed jury would refuse to convict the mother of Daniel James, whatever the prosecutor said, if the facts are as you described them. You have not chosen to draft your guidelines, as I understand it, on the basis of your apprehension of whether or not you have a case that a jury would convict, you have gone down a middle line where you have used the discretion given to your office. Now, I understand where that discretion is exercised on the basis that the defendant is terminally ill, and I have had occasion on behalf of clients to be very grateful to your predecessors for having exercised that discretion, and I think the public understand that. What I cannot understand – I understand why you did it, at the direction virtually of the House of Lords—

Mr Starmer: I didn’t have a lot of choice.

Mr Bertie Leigh: I understand that, but I am not quite sure what you were doing and how you say that the publication of a policy did not in fact amount to law making by your office, and I wonder, if somebody else were to decide to bring a prosecution on one of these cases, would the Attorney General intervene, take over the prosecution and discontinue it, and, if he did not, would the defendant not be entitled to feel pretty aggrieved?

Mr Starmer: Two or three points, if I may, in response to that. The first is an easy point. The proceedings can only be brought with the consent of the DPP or the Attorney General, so a private prosecution can’t get off the ground without consent. Parliament recognised that this was not an area where it would be sensible to preserve the right of private prosecution unfettered by the need for consent. So, whatever the decision, it will go through the guidelines, whatever is thought of the guidelines. In my own defence, purely as a matter of law, it is right to say the House of Lords required me to draw up guidelines and they required me to indicate factors for and against prosecution. Now, others have suggested that to do so is unlawful. That is interesting. The House of Lords, the most superior court in the country, says do X. The proposition that doing X is unlawful I find difficult. So we have followed the order of the court and we have drawn up a policy. We have made it absolutely clear through the policy that these are factors, they are not guarantees, and that each case has to be looked at on its facts and merits, and that is true. It is not just a formula, it is true, because every single case we have had to apply these guidelines to has been different; every single factor has had different weight in each of the cases; no two cases have been the same; many of them involved Dignitas, etc., but the circumstances varied profoundly; and genuinely we are looking at each case on its merits, but we are indicating what the relevant factors are and how we will take them into account. I think that is the right side of the law. I don’t think it changes the law, but, even if I am wrong about that, I was required to do it. I don’t say that with any bitterness. I think it has been a very helpful exercise and brought out decision making into the open, and the truth is, when we looked back, assisted suicide cases didn’t just arise on my watch, they arose on the watch of previous DPPs, but those decisions were taken, you know, behind closed doors without reason, with nobody knowing on what real basis the DPP was exercising his discretion, and I don’t think that is very healthy. Whether you agree or disagree, you know the basis on which I am making these decisions. I think that is better, certainly.

The President: Okay, last question from Elizabeth Pygott.

Ms Pygott: Elizabeth Pygott, solicitor. You mentioned that 68 cases had been considered and, in the context of the question by Bill Gardiner about why should people have to go abroad, do I take it that some of those took place here and they weren’t only close members of the family but may have been professionals?

Mr Starmer: Yes, you are right, they were not all cases that involved individuals going abroad. A good number of them involved suicides in this country by a number of different means and the vast majority were very close family members, but not all, and some involved individuals who were giving some advice in some capacity or other. It is a broad range of cases, but it is wrong to think that these are all cases where people have gone abroad, by any stretch of the imagination. The Dignitas cases are certainly a proportion of those cases, but there are many that involved incidents in this country, and, interestingly, the number of cases that have been investigated have gone up, and think one reason may be that, emboldened by knowing what the guidelines say, people have been a little franker with the police about what actually happened in a given situation, and I actually think that is a good thing.

The President: Okay. I am a little relieved that we have actually run out of time, as the discussion is soon to turn to medical involvement (laughter) in assisted dying, which I think should be the topic for another visit, if you would be so kind. I am reminded of what Woody Allen says about euthanasia, that it does have a complete lack of side effects. (Laughter) That is one of the few things you can say for it. Thank you very much for coming to talk to us. Can I give you a small token of our thanks from the Society. You are an honorary member for a year. We hope we will see you again. (Applause)