Debbie Purdy’s persistent pursuit of clarity has borne fruit. She wanted to know from the Crown Prosecution Service whether her husband would face prosecution should he help her to take her life in Switzerland. In a unanimous decision, the law lords ruled that she was entitled to such clarity, and instructed the DPP to clarify his position as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case.

The DPP, Keir Starmer QC, has this week produced his interim guidelines. At their launch he said “There are no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take.” He went on to detail those factors in favour and against prosecution.

The public interest factors in favour of prosecution include: that the victim was under 18 years of age; or was adversely affected by a recognised mental illness or learning difficulty; did not have a clear, settled and informed wish to commit suicide or did not indicate unequivocally to the suspect that he or she wished to commit suicide; or did not have a terminal illness, or a severe and incurable physical disability, or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors in favour of prosecution would be if the victim did not ask personally, on his or her own initiative, for the assistance of the suspect; the suspect was not wholly motivated by compassion or stood to gain in some way from the death of the victim; or persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim’s decision to do so.

The public interest factors against a prosecution include: that the victim had a clear, settled and informed wish to commit suicide, had indicated unequivocally to the suspect that he or she wished to commit suicide, had asked personally on his or her own initiative for the assistance of the suspect, and had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors against prosecution would be if the suspect was wholly motivated by compassion; was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship; and the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment.

Response to the guidelines has been mixed. According to ‘The Times’, Lord Falconer of Thoroton, a former Lord Chancellor and the first Justice Secretary, hailed the DPP’s guidelines as a “very, very significant step” and said he had “unquestionably changed the law”. Dignity in Dying, the assisted suicide campaign group, described the move as a “significant breakthrough for greater patient choice”. But Phyllis Bowman, executive officer of Right To Life, called the guidelines a “scandal”. “However much he has tried to cloak it, his guidelines outline an interim policy which in effect will make it legal to assist in a suicide,” she is reported as saying.

Keir Starmer said “I recognise how sensitive this area of law is and I respect the fact that there are many people who hold strong views on assisted suicide. I want to hear those views and that is why I have also launched a public consultation today. By considering as many views as possible, I can produce a final policy which is faithful to both the law and public feeling.” The public consultation will be open until 16 December, after which a summary of the consultation responses will be published. The finalised policy will be issued in Spring 2010.

The full text of the Interim Policy can be found at: http://www.cps.gov.uk/consultations/as_consultation.doc, and details of the consultation can be found at: http://www.cps.gov.uk/consultations/as_index.html

I reckon that the busiest groups of civil servants currently are those monitoring Government sponsored consultation processes. Under the present Government there are literally hundreds of consultations launched every year. The official line is that consultation is about making government more open and policies more effective by listening to and taking on board views of the public and interested groups, and has become an integral part of the policy-making process.

And here comes another, launched by the Ministry of Justice, which department alone has over 80 consultation exercises in progress at the moment. It concerns proposals to reform the way costs from central funds are awarded in the defence of privately funded defendants acquitted in criminal cases in England and Wales. This is in the context that the Government is committed to the principle that state funding in the form of legal aid should be available to individual defendants who cannot afford to pay for their own representation. “But it also believes that those who can afford to pay towards the cost of their defence should do so. For these reasons, means testing was reintroduced in the magistrates’ court in 2006 and we are currently consulting on a pilot of means testing in the crown court.” Changes are not proposed to the current arrangements for private prosecutor, witness, medical expert or interpreter costs, which are also paid from central funds.

What is being proposed is that, in future, any individual who does not apply for legal aid in defending their case would no longer be able to receive back their legal costs from central funds. This would be a reversal of the practice that those found innocent of charges brought by the state are compensated for the costs they have incurred in defending themselves. Under the Prosecution of Offences Act 1985, if an individual pays for their defence privately they can usually reclaim reasonable costs and expenses from central funds if they are acquitted. An interesting, if debatable, analogy with private education is offered in support. “Just as an individual who chooses to put their child through private education does not reclaim this cost from the education system, nor should public funding recompense those that choose to pay privately for a lawyer when a publicly funded alternative is available.”

According to ‘The Times’, the proposals have prompted outrage. Frances Gibb reports that, amongst others, motoring groups and lawyers have criticised them as a fundamental breach of principle. She quotes Edmund King, president of the AA, as saying that the proposal is “against the common law and against the common man”; and Ian Kelcey, head of the Law Society’s criminal law committee, as condemning the proposal as a “disgrace.”

The consultation will close on 29 January 2009. Full details are available at
http://www.justice.gov.uk/docs/award-costs-central-funds.pdf

If you want to see the full range and extent of current consultation exercises, navigate your way round
http://www.direct.gov.uk/en/Governmentcitizensandrights/UKgovernment/PublicConsultations/DG_4003113