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

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

Suicide is no longer a criminal offence in Britain, but assisting in someone else’s suicide most certainly is, with the possibility of a draconian sentence.

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.