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

The Crown Prosecution Service has this week launched a 12 week public consultation on important changes to the Code for Crown Prosecutors, which is the document that sets out the principles which prosecutors must follow when they decide whether or not to prosecute an individual. The test set out in the Code is applied in every case and it requires prosecutors to consider whether there is sufficient evidence to charge an individual with a criminal offence and whether a prosecution is needed in the public interest.

In announcing the consultation, Keir Starmer QC, Director of Public Prosecutions, said “Following the announcement of the merger between the CPS and the Revenue and Customs Prosecutions Office (RCPO) earlier this year, I have considered further what changes to the Code for Crown Prosecutors should be made in order to ensure that all prosecutors in the new public prosecution service, along with police officers, are making fair and consistent decisions”. The main changes are:

• Prosecutors will have a discretion to determine whether, where there is sufficient evidence and it is in the public interest to prosecute, a prosecution is a proportionate response to the specific offending.
• Prosecutors will have a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available.
• A fuller section explaining the Threshold Test.
• A fuller section explaining the use of out-of-court disposals for both adults and youths.
• A fuller explanation of how the public interest is assessed.
• Further public interest factors are identified both tending in favour and against prosecution.

According to ‘The Times’, the consultation will fuel the debate on the numbers of cases escaping prosecution in the courts, which they estimate to be half the 1.4 million offenders dealt with by the justice system each year. A Crown Prosecution Service spokesman is reported as accepting that some offenders could be let off under the guidelines. ‘The Times’ also reports that the proposals were immediately condemned by the Magistrates’ Association, which said that it was yet another instance of the blurring of the respective duties of courts and prosecutors. John Howson, deputy chairman of the Magistrates’ Association, is reported as saying that the new discretion for prosecutors seemed to be “part of the complete muddle in the way we treat offenders and over the boundaries between where the prosecutors and the courts lie”, adding that “if someone has offended, they should be brought before the courts, where we have a range of penalties from an absolute discharge to custody. The job of prosecutors is to find the evidence, not to assess the weight of it”.

The consultation period ends on 11 January 2010 and a summary of the responses received will be published. The full text of the consultation can be found at:-

http://www.cps.gov.uk/consultations/rccp2_consultation.pdf

Debbie Purdy did not ask the law lords for the right to die. She did not ask that her husband be allowed to help her die. But she did ask for clarity over whether her husband would face prosecution should he help her to take her life in Switzerland. While not able to give her that clarity, the law lords ruled last week that she was entitled to it. That is a significant move forward from the situation as reported in last October’s blog ‘Assisted suicide’.

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

“The public’s right to live in safety and to be protected from criminal conduct lies at the heart of the criminal justice system. The Crown Prosecution Service (CPS) and the Revenue and Customs Prosecutions Office (RCPO) protect the public by prosecuting firmly and fairly, and by doing so in an open, transparent and independent way. Our duty is to serve our communities and to do justice in every case.”

So said the Director of Public Prosecutions, Keir Starmer, QC, when last week he published his plan for taking forward the public prosecution service. He said that for too long the CPS had been part of a criminal justice system. Criminal justice should not be a system, it should be a service, and developing criminal justice from a system to a service is now a priority. He identified the key to a dynamic and responsive public prosecution service as Core Quality Standards which set out clearly what is expected. They will lay down the minimum in terms of quality and delivery that the public are entitled to expect from those who prosecute on their behalf. The standards will cover every major aspect of CPS work, from protecting the public to advising the investigator, through to defining the standards of service in respect of every aspect of the prosecutor’s role in court, and supporting victims and witnesses in dealing with complaints.

The RCPO and the CPS are to merge and it is claimed that this will provide for a more flexible organisation, better placed to deal with specialist, organised, crime. At the same time a core commitment identified is to the communities served. Prosecutors are to be community prosecutors, so that they know the types of crime that cause most local concern and are able to take the public’s views into account in their decisions and in the information they place before the courts. The DPP said that criminal justice is not delivered as effectively and efficiently as it should be. “It is high time for the electronic case file and electronic case management systems to become the main currency in the criminal justice service.” Of the 104,000 cases placed before the Crown Court, 73% result in the defendant pleading guilty without the need for a trial. Given the extent to which the Crown Court is predominantly a sentencing court, the DPP said there should be a fresh look at how best to conduct business there. “Guilty pleas need to be identified earlier, so that valuable time and resources can be concentrated on those cases which are actually going to result in a trial.”

The Attorney General has created a Strategic Board to review and improve the delivery of public prosecution, fraud and legal services for which she is responsible. An outcome of that Board’s work has been the creation of an agreed protocol that sets out how the Attorney General and the Directors of the prosecution services exercise their functions in relation to each other. It claims to confirm the independence of the prosecution services in reaching prosecution decisions – pace BAE Systems – and sets out the circumstances when the Attorney General will be consulted by the prosecuting departments in order to ensure Parliamentary accountability.

The DPP concludes that “a criminal justice service underpinned by the rule of law and respect for human rights is at the heart of modern democracy…Fair, fearless and effective; open, honest and transparent; protective, supportive and independent: these are the qualities that the public has a right to expect of its public prosecution service. We are determined to meet those expectations.”

The full text of the plan can be found at:-

www.cps.gov.uk/news/articles/
and you are invited to send any comments to GeneralFeedback@cps.gsi.gov.uk