Debbie Purdey was told by the law lords that she was entitled to clarity over whether her husband would face prosecution should he help her to take her life in Switzerland. Keir Starmer, the Director of Public Prosecutions, quickly produced an interim policy. Yesterday he unveiled his definitive policy guidelines.

This followed a consultation exercise which produced an unprecedented 4800 responses, including 4000 from individuals. The Summary of Responses has led to a significant change of emphasis from the interim policy. Introducing the new policy, the DPP said that “there was a strong view that the factors against prosecution should not focus on the behaviour and characteristics of the victim, but should more properly be centred on the actions and role of the suspect. I agree with that approach and the Policy has been refocused. As a result of this change, factors relating to the health and disability of the victim have been removed from the Policy. In addition, the factors relating to the relationship of the suspect to the victim – namely that the suspect was the spouse, partner, relative or close personal friend of the victim – have also been removed…But that does not mean prosecutions are more or less likely. The policy has not been relaxed or tightened but there has been a change of focus.”

The new policy identifies sixteen public interest factors in favour of prosecution. These include: ‘victims’ under 18 years of age; or who did not have the capacity to reach an informed decision to commit suicide; had not reached a voluntary, clear, settled and informed decision to commit suicide; and had not clearly and unequivocally communicated his or her decision to commit suicide to the ‘suspect’. Other factors include: the ‘suspect’ was not wholly motivated by compassion; or pressured the victim to commit suicide; did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; or had a history of violence or abuse against the victim. The six public interest factors against prosecution include: the victim had reached a voluntary, clear, settled and informed decision to commit suicide; the suspect was wholly motivated by compassion; and the actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance.

Keir Starmer stressed that the policy does not in any way decriminalise the offence of encouraging or assisting suicide, which remains a serious criminal offence under the Suicide Act 1961 (as amended by s.59 Coroners and Justice Act 2009) and is punishable by up to 14 years imprisonment. “Nothing in the Policy can be taken to amount to an assurance that a person will not be prosecuted if he or she does an act that encourages or assists the suicide or the attempted suicide of another person”. So the debate now lies with the criminal law itself. An end to the criminal prohibition on assisting suicide is what Debbie Purdy and others really want, just as suicide itself has ceased to be a criminal offence. Whether parliament, with deeply divided opinion among MPs and their constituents, will grasp that nettle is another matter.

For the full text of “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide” go to: http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html For the “Summary of Responses” go to: http://www.cps.gov.uk/consultations/as_responses.html

That was the question posed by the Ministry of Justice. Even though juries decide less than 1% of all criminal cases in England and Wales, defendants in these cases are charged with the most serious criminal offences and face the greatest possible loss of liberty. The fairness of jury decision-making is of fundamental importance to the criminal justice system. The MoJ  therefore commissioned research from a University College London team led by Professor Cheryl Thomas, who presented their report last week. And the broad conclusion is that juries are indeed fair and efficient.

 The scope of  the UCL research is impressive. It involved case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries), large-scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts) and post-verdict survey of jurors (668 jurors in 62 cases). As to efficiency, once a jury is sworn it reaches a verdict by deliberation on 89% of all charges (judges direct jury verdicts on 11% of charges) and they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries). Juries convict on almost two-thirds (64%) of all charges presented to them and are rarely discharged (less than 1% of sworn juries).

 The research examined how fair the jury decision-making process is, specifically whether all- white juries discriminate against BME defendants, who are three and half times more likely to face a jury verdict in the Crown Court relative to their representation in the general population, and whether jurors racially stereotype defendants. The key finding was that verdicts of all-white juries do not discriminate against BME defendants. Jury verdicts showed only small differences based on defendant ethnicity. White and Asian defendants both had a 63% jury conviction rate; Black defendants had a 67% jury conviction rate.

 On specific offences, the category of homicide-related offences has some of the lowest jury conviction rates (threatening to kill 36%, manslaughter 48%, attempted murder 47%) but also some of the highest jury conviction rates (death by dangerous driving 85%, murder 77%). Offences where the strongest direct evidence is likely to exist against a defendant appear to have the highest conviction rates (making indecent photographs of a child 89%, drugs possession with intent to supply 84%, death by dangerous driving 85%). Contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate). Other serious offences (attempted murder, manslaughter, GBH) have lower jury conviction rates than rape.

 The team also looked at whether or not jurors understood judge’s legal advice. Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand. While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased. The review also found that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case, and 20% of jurors said they found it difficult to put these reports out of their mind while serving as a juror. All jurors who looked for information about their case during the trial looked on the internet, thereby admitting to something they should have been told by the judge not to do.  

The full text of this fascinating report ‘Are Juries Fair?’ can be found at:

http://www.justice.gov.uk/about/docs/are-juries-fair-research.pdf

All crime legal aid providers have to sign a contract with the Legal Services Commission. The current Unified Contract (Crime) has been extended to 13 July 2010, and the new 2010 Standard Crime Contract will come into force on 14 July. The LSC has just announced the new tendering procedure, and the main points are as follows.

The tender process for the new contract for all applicants who wish to undertake criminal defence service work in any Criminal Justice System (CJS) area of England and Wales opened on Monday 15 February 2010, and will close at 4pm on Friday 12 March 2010, so time is short. Providers will need to apply for and be awarded the new contract in order to carry out any new publicly funded criminal defence work from 14 July 2010. If you wish to apply for a contract, the essential document to read is the Information For Applicants (IFA). This paper contains the information, instructions, rules and Terms and Conditions that will govern the tender process. The IFA also contains the questions that will be asked in the online Pre Qualification Questionnaire (PQQ) and the ITT (Invitation to Tender). But the LSC stress that to answer these questions you must use their online system.

There are other documents important to the tendering procedure. The Standard Terms govern the underlying relationship between the LSC and Providers and the 2010 version is based on those already used in the current crime and civil Unified Contracts, updated and revised as appropriate. The Specification sets out the rules for carrying out publicly funded criminal defence work in all the CJS areas of England and Wales.  Much of the contents of the Specification reflect recent policy announcements, and the key changes include The Duty Solicitor Arrangements 2008, Prison Law Funding, and Prescribed proceedings in the Crown Court. The Schedule sets out provisions specific to an individual provider and the Contract for signature is a short contract document which will give effect to the contract as a whole. You will be asked to read, understand and agree to its contents as part of the tender process. 

For all these documents, and additional information, go to

http://www.legalservices.gov.uk/criminal/contracting/10652.asp#about

The Coroners and Justice Act 2009 has cropped up in these blogs several times before. This grab-bag of an Act covers a wide range of subjects. Apart from coroners and inquests, it deals with murder, indecent photographs, anonymity of witnesses, live links to court, confiscation orders, legal aid, criminal memoirs, and many other matters.

The latest section to be implemented is s.59, which deals with encouraging or assisting suicide. Previously, s.2 of the Suicide Act 1961 comprised two offences. This amendment replaces the substantive offence of aiding, abetting, counselling or procuring suicide, and the separate offence of attempting to commit the section 2 offence, with a single offence. The purpose of these changes is to “improve public understanding of the law in this area; and make clear that the law applies to online actions in exactly the same way as it does offline”. In line with the Law Commission’s recommendation, s.59 also replaces the “old-fashioned language” with what the Ministry of Justice considers “the more modern – and equivalent – terms of encouraging or assisting which should make it easier for people to understand the sort of behaviour that the law prohibits”. The scope of the law remains the same, so these changes, which came into effect on 1 February, do not make liable to prosecution anyone who was not liable before.

The subject of assisted suicide is rarely out of the headlines. In recent weeks one devoted mother who helped her sick daughter to end her life with tablets and morphine walked free from court with a suspended sentence. Another was jailed for murder, to serve a minimum of nine years, after injecting her brain-damaged son with a lethal dose of heroin. Both involved a loving parent who could not bear to see a child suffer. But there were key differences. Frances Inglis’s son had never indicated an intention to die. His mother believed him to be in pain and could not accept an encouraging medical prognosis. Kay Gilderdale’s daughter had contemplated going to the Dignitas clinic in Switzerland. When a first attempt at suicide failed, her mother helped her to end her life. These cases highlight the acute difficulties for prosecutors, judges and juries alike, and add to the pressure for greater clarity in the law.

In his moving and funny Richard Dimbleby lecture the other week, author Terry Pratchett, who has Alzheimer’s disease, made a plea for a common-sense solution. He proposed “some kind of strictly non-­aggressive tribunal that would establish the facts of the case well before the assisted death takes place. The members of the tribunal would be acting for the good of society as well as that of the applicant – horrible word – to ensure they are of sound and informed mind, firm in their purpose, suffering from a life-threatening and incurable disease and not under the ­influence of a third party”. Death, as a character, ­appeared in the first of his splendid Discworld novels, and he said that “he has evolved in the series to be one of its most popular characters; implacable, because that is his job, he appears to have some sneaking regard and compassion for a race of creatures which are to him as ephemeral as mayflies, but which nevertheless spend their brief lives making rules for the universe and counting the stars”. But death always has the last word.

The full text of  MoJ Circular 2010/03, implementing s.59, can be found at: http://www.justice.gov.uk/publications/docs/circular-03-2010-assisting-encouraging-suicide.pdf

Hard on the heels of the National Audit Office’s highly critical report to Parliament on the procurement of Criminal Legal Aid in England and Wales comes the Public Accounts Committee’s savaging of the Legal Services Commission, the body charged with administering the programme.

The Legal Services Commission (LSC) spends £2.1 billion a year on buying civil and criminal legal aid, mainly from solicitors and barristers, and a further £125 million on administration. While accepting that the Commission has successfully arrested the increase in legal aid spending in the last five years, the PAC nevertheless found it to be an organisation with poor financial management and internal controls and

deficient management information. These weaknesses resulted in the Commission having its annual accounts qualified for 2008–09 and an assessment that its procurement and administration of criminal legal aid posed risks to value for money.

The Committee was very concerned that such weaknesses in the Commission’s

performance had occurred when the Ministry of Justice spends over £2 million a year itself on legal aid policy matters and on overseeing the Commission. In the words of the report: “We found confusion and uncertainty about the respective roles of the two organisations which had led to duplication of effort on some issues and a lack of clarity about who should be responsible for others. Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”.

The gaps the Committee found in the arrangements to assure the quality of criminal legal aid procured made it harder to assess whether the services delivered represent good value for money. The LSC considered the introduction of tendering would remove the imperative for it to know the market, because prices would be set by competition. But the recently announced abandonment of its plans to introduce its tendering proposals following representations from the legal profession leaves the Commission not able to assess if it is paying a reasonable price for legal aid.

The LSC has been responsible for implementing significant reforms to legal aid recommended by Lord Carter, but the PAC concluded that constant changes in staff at senior level, and poor planning of the changes, has meant that reforms have often been delayed, have not always kept to their timetable, and have not been properly evaluated to assess their impact.

The full text of the Committee of Public Accounts’ report “The procurement of legal aid in England and Wales by the Legal Services Commission (Ninth Report of Session 2009–10)” can be found at

http://www.publications.parliament.uk/pa/cm200910/cmselect/cmpubacc/322/322.pdf