A comment on the Director of Public Prosecution's Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide

Introduction

A new development has occurred in the prolonged debate in the UK over the legal position of persons assisting a suicide: the Director of Public Prosecutions (DPP), who is responsible for the instigation of public criminal charges has released his Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. ¹ These guidelines outline the factors that are considered in cases of assisted suicide when deciding whether it is in the public interest to bring a prosecution. An analysis of the background to the publication of these guidelines would necessarily involve engagement with the lengthy public social, political and legal debate that has made this area such a controversial topic in the UK, and in many other countries in Western Europe. The focus here is on two key cases, the first of which reached the European Court of Human Rights, while the second brought about the dissemination of the DPP's policy.

R (on the application of Pretty) v Director of Public Prosecutions (2001) ²

Dianne Pretty's case was widely publicized. She suffered from a terminally progressive incurable degenerative disease, motor neurone disease, and her condition had become such that she was essentially paralysed from the neck down, but retained full mental capacity. She wished to choose when and how she would die, but the disease had deprived her of the ability to commit suicide. She therefore asked for aid from her husband. However, at the time, under section 2(1) of the Suicide Act 1961 a person committed an offence in England and Wales if they aided, abetted, counselled or procured the suicide of another. Section 2(4) provides that any proceedings will not be instigated without the consent of the DPP. Effectively, then, it is the choice of the DPP whether to instigate proceedings in the public interest, considering the circumstances surrounding the case. Mrs Pretty requested reassurance that the DPP would not prosecute her husband if he assisted her suicide, but this was not forthcoming. Seeking legal redress on this matter, Mrs Pretty based her argument on the proposition that English domestic law infringed several of her rights under the European Convention on Human Rights (ECHR). These included the right to a private life encompassing the concept of self determination (Article 8), and the right to be protected by the state from degrading or inhuman treatment (Article 2). Her case was dismissed by the European Court of Human Rights, ³ but prior to this the House of Lords had suggested that it may be proper to make public the mechanics behind the decision-making process in this area:

‘I would not for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors … plainly such a step would call for careful consultation … [However] The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power’. ⁴

Despite this, the DPP did not issue a statement and the uncertainty caused by the lack of information regarding prosecutions of those who assisted a suicide was key in a more recent pivotal case.

R (on the application of Purdy) v Director of Public Prosecutions (2009) ⁵

In this case Debbie Purdy sought to force the DPP to issue clear guidelines on the prosecution of those assisting suicide. Mrs Purdy, who suffers from incurable progressive multiple sclerosis, was concerned about her husband's potential criminal liability if he helped her to travel abroad to end her own life. It is widely supposed that those travelling abroad for this purpose come within the jurisdiction of the English criminal law; however, since others had assisted in this way but not been prosecuted, ⁶ the legal position was unclear.

This case did not reach the European Court of Human Rights, unlike Pretty. Furthermore, Mrs Purdy was not seeking assurances that no prosecution would be brought against her husband; instead she sought information from the DPP on the determining factors considered when deciding whether to instigate a prosecution. The DPP declined to give any information on the relevant considerations that would be taken into account if her husband aided her to travel abroad to commit suicide. Mrs Purdy argued that her right to respect for private life under Article 8 of the ECHR was being infringed as this failure contradicted her right not to be interfered with by a public authority in her exercise of this right. The Law Lords held that the DPP ought to build and disseminate a:

‘custom built policy indicating the various factors for and against prosecution … factors designed to distinguish between those situations in which, however tempted to assist, the prospective aider and abettor should refrain from doing so, and those situations in which he or she may fairly hope to be, if not commended, at the very least forgiven, rather than condemned, for giving assistance’. ⁷

In response to this ruling, the DPP has now published the Policy for Prosecutors. ⁸

The DPP's guidance

One of the most important points to note in the DPP's guidelines is the change in definition of the offence of assisted suicide. In Pretty, the offence under section 2 was construed in terms of aiding, abetting, counselling or procuring the suicide of another. However, amendments by the Coroners and Justice Act 2009 mean that the suspect is now liable for acts capable of encouraging or assisting the suicide or attempted suicide of another person, ⁹ if that act was intended to encourage or assist suicide or an attempt at suicide. ¹⁰ This new definition came into use in January 2010 and is used in the DPP's guidelines. ¹¹ Because of its importance it is accorded weighty explanation, ¹² indicating that it may be necessary for prosecutors to receive further information on this change so as not to create confusion, ¹³ and also clarifying the types of behaviour that fall within the new definition, such as threats ¹⁴ or the supply of a harmless drug that was believed to be lethal. ¹⁵ The guidance also states that where the act in question took place before the enactment of the amendment on 31 January 2010, the former offence of aiding, abetting, counselling or procuring the suicide of another will apply and, presumably, all of the case law and precedent that has been attached to that offence. ¹⁶ This is important as it ensures that there is a clear break in the form of future prosecutions, not only because of the change in the definition of the offence but also because it coincides with the introduction of new information about the possibilities of prosecution for those concerned. This can be seen as a new beginning which may bring an end to the previous confusion experienced. Perhaps the most controversial statement in the introduction of the guidance is that the policy applies to acts constituting the assistance and committed ‘anywhere in the world.’ ¹⁷ This is explored further below.

How does the DPP decide when to prosecute?

The guidelines are informative as to how decisions to prosecute will be made. The decision will not be made merely by adding up the number of factors on each side and making the decision in favour of the majority, but by looking at each case individually. ¹⁸ It is possible that one factor in favour of non-prosecution, such as whether the victim had reached a voluntary, clear and informed decision ¹⁹ or the degree to which the act of the suspect was dictated by compassion, ²⁰ may outweigh all the other factors that favour the opposite action by the DDP. ²¹ The factors that are to be considered in favour of prosecution number 16, ²² while those public interest factors against prosecution number only six. These latter factors are concerned with the independent nature of the victim's decision to commit suicide, and how much assistance and for which motives the assistant provided that aid. For instance, a factor tending against prosecution would be the reluctant nature of the encouragement given to the victim. ²³

In the context of the wider euthanasia debate, it is important to consider where the guidelines have taken into account factors such as the wishes of the victim and the ideals of self-determination and autonomy of the victim, as these concepts dominate much of the pro-assisted-dying argument. ^24–26 Several factors either side of the decision-making process cover these concerns, especially those qualifying the requirement of consent. First, it is asked whether the victim has the capacity to reach an informed decision; ²⁷ if not then this is a factor in favour of prosecution. Second, did the victim have a clear settled and informed wish to commit suicide? ²⁸ This ensures that the wish was not a whim or a cry for help. Third, has the victim unequivocally indicated to the suspect that they wished to commit suicide? ²⁹ This factor is essential. If the request was not unequivocal it could not have been clear. Such an indication would suggest that the suspect has acted without a clear confirmed request from the victim, and would act as a factor in favour of bringing a prosecution in the public interest. Finally, did the victim ask personally and on their own initiative for the assistance of the suspect? ³⁰ If they did not, this could bring about a chain of events in which a third party could agitate the true intentions of the victim, directly affecting the autonomous principles of self-determination which, if violated, favour prosecution. Such considerations, evidenced on both sides of the deliberation process, help to qualify and conserve the autonomous principle of self-determination. Practically, for each to be answered positively all must be answered positively, whereas a negative answer to one will indicate that a previous qualification has not been met.

Apart from these factors, some of the most controversial considerations are whether the suspect acted wholly out of compassion ³¹ or were they motivated by something more, such as standing ‘to gain in some way from the death of the victim.’ ³² The first would act as a reason not to bring a prosecution while the latter would have the opposite effect. The other factors worthy of special consideration are those dealing with the nature of the relationship and proximity of the suspect to the victim; each affects the decision to bring a prosecution. For instance, a reason for not bringing a prosecution may be that the suspect had tried to dissuade the victim from the action. ³³ While a factor in favour of prosecution was that the suspect was being paid by the victim. ³⁴ The relevance of these particular ‘compassionate’ factors is that they highlight the problem with guidelines such as these, in that they clarify some areas such as the limited respect shown to the patient's autonomous decisions, yet manage to confuse legal principles in others, such as the jurisdiction of the law, when and where the law can be applied, and the relevance of motive in criminal cases. Likewise, there is a similar blurring of the law due to the jurisdictional claims that the policy makes as to who and where a person may be liable to prosecution.

Jurisdiction

The potential for the policy to confuse the application of established legal principles is clear. When considering the jurisdiction of the Suicide Act 1961 and the offence of encouraging or assisting the suicide of another, it is claimed that the offender may be liable anywhere within the world. ³⁵ However, generally the application of domestic criminal law is limited to the territory of England and Wales unless expressly stated by statute. ³⁶ There is no section or phrase in the Suicide Act 1961 which creates an extraterritorial extension of the section 2 (2) offence so as to make it binding on the British citizen abroad; in fact under section 3 (3) the offences covered by the Act ‘extend to England and Wales only’. Various arguments can be produced to say that such an offence would be covered by the extraterritorial extension of the criminal law under section 8 of the Offences Against the Person Act 1861, but such arguments have never been specifically tested. Nor can it be said that the act of, for instance, pushing the victim's wheelchair onto a plane in England could constitute the criminal action required under section 2.

More specifically the section 2 offence is a ‘result crime’; it only takes place in situations when the victim goes on to attempt or to actually commit suicide. In this scenario this would take place abroad, for instance in Switzerland, which some have suggested is beyond the ambit of the criminal law in this area. ³⁷ It would be hard to construe the suspect's actions in the UK as any more than the mere assistance in the proposal of suicide, which is not an offence in the UK. ³⁸ The result of the statement in paragraph 8 of the policy with regards to jurisdiction is to confuse an untested area of law and hold it up as if it were fact, when in truth it has only been taken as fact and never legally tested. The confusion on this matter was exemplified in the reasoning of the House of Lords in Purdy. Recognizing that the offence did not have the extra jurisdictional powers required, it was first postulated that it may therefore be considered an act of murder, which when committed abroad can be prosecuted in England. ³⁹ However, such an argument was dismissed by Lord Hope, who had an equally difficult time in giving clarity to the matter, finally stating ‘that there is a substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution (for assisted suicide) in this country.’ ⁴⁰ This shows that when publishing a policy which aims to make clear the liability and prosecutorial prospects of the suspect, there is a danger in including a statement which regards as fact something which is very far from it.

Motivations

A further point of possible contention is the consideration of the suspect's motive for acting. The guidelines consider whether the suspect has acted wholly out of compassion ⁴¹ as relevant to whether a prosecution should be instigated; a clear acceptance of the relevance of motive. However, it is usually accepted that ‘motive is generally irrelevant to the criminal law’. ⁴² While such an assertion is not entirely accurate in the modern day, the policy may have the effect of negating the criminalizing intent of the defendant because of their morally good motivation. To the lay person, the distinction between the criminalizing intent of the suspect and their morally good motivation may be confusing. The suspect's motivation, their good intention, shall be construed as wanting to help to end the patient's suffering, to achieve this result they must commit a crime, the assisted suicide of the victim, but their good intention does not negate their criminal liability. Put another way, the suspect's motivation is to end the victim's suffering; a side-effect of this will be assisting or aiding the victim to commit suicide. While this side-effect is not the suspect's primary purpose, they nevertheless intend to commit this criminal act as a means of reaching their good purpose. It is this intent, the intent to assist suicide, which constitutes the crime regardless of any other driving factor.

By ignoring the motivating force behind the actions in these circumstances, the law can be seen merely as ‘a blunt instrument for the allocation of blame’. ⁴³ Equally, those who support the exclusion of motive from the criminal law claim it is for Parliament to declare in legislation whether motive is a relevant part of any offence. ⁴⁴ However, in the Suicide Act no such indication was made. It is also the case that motive will always be an important consideration at the time of sentencing, as was the case in R v Gilderdale, ⁴⁵ discussed below.

These two points highlight the difficulties that are faced when producing a defining policy that seeks to give clear instructions to the lay person. The criminal law in England is not codified; rather, it has evolved over time through case law, and the introduction of a clear set of guidelines inevitably has the effect of interfering with this complicated patchwork of precedent and will cause further uncertainty in some areas, in this case concerning motive and jurisdiction. However, this particular policy has also had an alternative effect; some sentiments that seem to have been held by the courts as mitigating when passing sentence are now being considered as factors against bringing a prosecution in the first place, such as the nature of the suspect's relationship to the victim and the form of help they provided. The consideration of mitigating factors could also have an unforeseen effect, in which the DPP is said to have usurped the role of Parliament. It is for Parliament to decide when a person has committed an offence as specifically laid out in statute; by considering these mitigating factors the guidelines can be claimed to be ignoring the will of Parliament. However, such an argument requires a deeper consideration of formalist legal theories than can be given in this article.

These mitigating factors are linked with the proximity, relationship and history the suspect has with his/her victim; whether the suspect had tried to talk the defendant out of the course of action; ⁴⁶ and whether they had been forthcoming and cooperative with the police in the aftermath of the events. ⁴⁷ These sentiments are encapsulated in the case of R v Gilderdale, ⁴⁸ a case in which the mother of the victim pled guilty to assisted suicide. Gilderdale's daughter had suffered from severe ME for 16 years and had previously tried to commit suicide. She had implored her mother for aid. After trying to talk her daughter out of the attempt, Gilderdale, a trained nurse, administered a cocktail of pain killers to her daughter through an intravenous drip, resulting in her death. Soon after she contacted the police and informed them of what had occurred. Although she pleaded guilty to assisted suicide, the DPP thought it necessary to prosecute her on a charge of attempted murder, a conviction that would almost certainly have resulted in a term of imprisonment. Following the jury's verdict of not guilty of attempted murder and in consideration of the mitigating factors, the court handed out a conditional discharge and Gilderdale will not serve a prison term. In a statement that paid heed to the mitigating effects of the factors relevant in this prosecution, and prior to the release of the DPP's guidelines, the judge stated:

‘I do not normally comment on the verdicts of the juries but in this case their decision, if I may say so, shows common sense, decency and humanity’. ⁴⁸

Such a case is an example of the need for the DPP's guidelines to outline clearly when and how such cases should be prosecuted. If this case had occurred after the release of the guidelines, Kay Gilderdale might not have been tried for attempted murder nor faced the possibility of such a highly stigmatizing conviction because her case exhibits many of the relevant core factors that indicate which kind of behaviour any possible prosecution investigation ought to follow. However, it is important to consider the comments made by the CPS when considering whether Gilderdale should have been charged with attempted murder. In their view her actions went further than merely assisting suicide at the moment she began to administer morphine and other drugs to her daughter. The CPS believed that such conduct was capable of constituting attempted murder rather than assisted suicide because she actually administered the drug rather than just provided it. ⁴⁹

Conclusion

The most that can be said for the introduction of the Policy for Prosecutors is that it is a development. Whether it should be welcomed as a positive step in the campaign to legalize some forms of assisted dying cannot, as yet, be established. But certainly, if looked at in light of the wider European assisted dying debate, such an inference may be made. This is not the first time that guidelines have been issued in a European state to make clear what types of action are likely to bring a prosecution. Indeed, in Holland during the 1980s there was much debate over the liability of doctors involved in euthanasia/physician-assisted suicide, generally accepted as conceptually different from cases in which laypersons assist as in Purdy and Pretty. Following this debate, the Dutch Supreme Court in 1987 ⁵⁰ and the Ministry of Justice confirmed that a doctor complying with the requirements of due care, established by the Royal Dutch Medical Association, would not be subject to charges brought by the prosecutorial authorities. ⁵¹ This was the first step in a series of events which eventually led to the legalization of requested euthanasia in Holland in 2002. ⁵²

This is not to suggest that the UK will take a similar route merely because of the publication of guidelines relating to the prosecution of those involved in assisted suicide. However it is interesting to consider the similarities between the UK and other countries embroiled in similar debates in Europe, ³ in order to perhaps anticipate the next step for pro-assisted-dying campaigners. The DPP's guidelines do not create exemptions from prosecution in the manner created by the Dutch guidelines, only a clarification of those factors which are taken into account when deciding whether to prosecute. This does not diminish the positive impact that such a policy may have on the area. For instance, it could be said that the guidelines have a certain protective intention embedded within them, and this, as with all good intentions, should be commended. However, the possible consequences of these intentions should not be over-shadowed by optimism. The potential to cause further legal confusion and setbacks is apparent, no doubt giving rise to the policy being subject to continual challenges similar to those in Pretty and Purdy. However, any attempt to clarify this area of law for the compassionate layperson who may be confused about their potential liability should be applauded. It is also commendable that the policy is not a widespread acceptance of assisted suicide as occurred in Holland regarding medically assisted dying, but rather is a method of retaining the power to prosecute those who assist another's suicide for the wrong reasons. It is hoped that the introduction of these policy guidelines, coupled with the new definition of assisted suicide, will act in cooperation with each other to bring much-needed clarity to this highly contested area.