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

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

In giving their unanimous decision the law lords emphasised that it was no part of their function to change the law in order to decriminalise assisted suicide. That was a matter for parliament. Indeed Lord Hope said that “the law, as it stands, could not be clearer. It is an offence to assist someone to travel to Switzerland or anywhere else where assisted suicide is lawful. Anyone who does that is liable to be prosecuted”. But Article 8 of the European Convention provides that everyone has the right to respect for his private and family life, with no interference by a public authority except in accordance with the law. Ms Purdy did not ask that her husband be given a guarantee of immunity from prosecution. What she sought was information so that she can take a decision that affects her private life. There have, to date, been 115 cases of people who have made the journey to countries where assisted suicide is lawful, and those who have assisted them have not been prosecuted. Of those cases only eight have been referred to the Director for a decision as to whether or not the assistants should be prosecuted. None have been prosecuted, either because there was insufficient evidence or on public interest grounds.

Lord Hope acknowledged that decisions in this area of the law are highly sensitive to the facts of each case and are also likely to be controversial. But, he said, “I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute”. In an immediate response, Keir Starmer QC, the Director of Public Prosecutions, said “the CPS has great sympathy for the personal circumstances of Ms Purdy and her family. We will endeavour to produce an interim policy as quickly as possible which outlines the principal factors for and against prosecution. To that end, I have already set up a team to work through the summer with a view to producing an interim policy for prosecutors by the end of September”. He added that once the interim policy is published, he will undertake a public consultation exercise in order to take account of the full range of views on the subject. In the “continuing absence of any legislative framework by then” he will publish his finalised policy in the Spring of 2010.

Then it will be for politicians to decide whether this as an ethical issue that can not be left to the CPS alone and revisit the 1961 Suicide Act.
The full text of the law lords’ judgement can be found at:-

http://www.bailii.org/uk/cases/UKHL/2009/45.html

Complicity in suicide.
(1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be [guilty of an offence] …

Enabling Provision: s.2 Suicide Act 1961.
Triable Status: Indictable only.
Max. Sentence on Indictment: 14 years.

(See Criminal Offences Handbook (Anya Publishing) p.229)

All court cases concerning this subject are highly emotive, and the latest is no exception. Debbie Purdy is suffering from multiple sclerosis and facing the dilemma of when to take steps to kill herself or whether to wait until she needs help from her husband and risk his prosecution. According to ‘The Times’ she is considering going to Switzerland, where assisted suicide is legal, if her pain becomes unbearable, although “having to go to another country will be adding to my own grief and distress”. Her husband has said that he would assist her “and if necessary face a prison sentence, but I am not prepared to put him in this position.”

The DPP is making decisions to prosecute anyone who assists with a UK suicide, although no relative of the 100 UK citizens who have gone abroad to Dignitas clinics to die has been prosecuted. There is no written public guidance informing these decisions. Ms Purdy wants UK law clarified, and successfully appealed in June for a judicial review in the High Court on the grounds that the DPP had acted illegally by not providing such guidance. That appeal is now in progress. Her QC, David Pannick, accused the DPP of breaching Ms Purdy’s right to respect for her personal and family life under Article 8 of the European Convention on Human Rights by failing to publish a policy making clear the circumstances in which he would, or would not, allow a prosecution to proceed. Lawyers for the DPP said that the clear legal provisions of the Suicide Act 1961 provide sufficient information when coupled with the guidance contained in the Code for Crown Prosecutors. The case continues.

Last month, Justice Minister Maria Eagle made a statement on clarifying the law on assisting suicide to deal with the misuse of the internet, in particular about suicide websites and the influence they may have over vulnerable people, especially young people. The Minister accepted that “the complexity of the law in this area stems from the unusual nature of the offence in section 2 of the Suicide Act which provides accessory liability in respect of something which is not of itself criminal.” She went on to say “we have concluded that the scope of the current law should not be extended but that the existing statutory language of section 2 of the Suicide Act should be simplified and modernised in a way which will make it clearer for everyone to understand.” Legislation to update the Suicide Act in this respect was promised “as soon as Parliamentary time allows.”
So no change in the law, just making it all clearer.