Dangerous guidance
Date: 11 December 2009
Authors: John Keown
Issue: Vol 159, Issue 7397
Categories: Features, Human rights, Constitutional law, Public
In R (on the application of Purdy) v Director of Public Prosecutions [2009] All ER (D) 335 (Jul) the law lords ordered the director of public prosecutions to issue guidance setting out the factors he takes into account in deciding whether it is in the public interest to prosecute assisting or encouraging suicide.
Placed in this invidious position (by a ruling which was, with respect, unsound if not unconstitutional: see NLJ, 2 October 2009, p 1340), the DPP duly drew up interim guidelines and put them out for public consultation until 16 December. The guidelines (A public consultation on the DPP’s interim policy for prosecutors on assisted suicide) need tightening in at least three respects.
First, they need to state in terms that Purdy did not change the law, that assisting suicide remains a serious offence punishable by up to 14 years’ imprisonment, and that Parliament has repeatedly and recently reaffirmed the blanket prohibition. This is particularly important given the misleading media reports that Purdy created “exceptions” to the offence and given the context of the case. Purdy was not merely a case of some neutral party seeking clarification of the law: it was part of an orchestrated campaign to undermine it.
As former DPP Sir Ken Macdonald QC put it in The Times, September 24, 2009: “It is clear that some people have sought to put pressure on the prosecuting authorities as part of a planned campaign.” His successor should show he will not be used as a political pawn by campaigners who, having failed to persuade Parliament, are now trying to pressure the prosecutors.
Tightening
This context is also relevant to the second reason why the guidelines need tightening. They seem to assume that the sort of cases which will raise public interest issues in future will be of the same sort which have arisen in the past, like those of Daniel James. Daniel was the paralysed young man who was helped to travel to Switzerland for assisted suicide by his loving parents who repeatedly tried to dissuade him.
Given that Purdy may well be interpreted by many as opening the door to assistance in suicide, and given that some may well try to force that door by testing the limits of prosecutorial discretion, the guidelines need to make it crystal clear that prosecution will be the rule unless the circumstances are wholly exceptional. This the interim guidelines signally fail to do.
They misleadingly state that the question is whether prosecution “is needed” in the public interest. But the Code for Crown Prosecutors makes it clear that if there is enough evidence of a crime to provide a realistic prospect of conviction “a prosecution will usually take place” unless there are public interest factors tending against prosecution which “clearly outweigh” those tending in favour. To ask whether prosecution “is needed” in the public interest reverses the code’s presumption in favour of prosecution.
In the interim
Moreover, as Lord Carlile has pointed out (The Daily Telegraph, November 14, 2009), the interim guidelines—which list 16 factors in favour of prosecution and 13 factors against—depict the DPP “not as an enforcer of the law other than in exceptional cases, but rather as an even-handed arbitrator deciding between prosecuting or not prosecuting people who assist suicides”.
Further, several of the factors listed against prosecution—such as that the deceased had a severe and incurable physical disability; or had previously attempted suicide and was likely to do so again; or was helped by a spouse or close relative—are problematic.
Of such factors Lord Carlile comments: “This is discriminatory against the sick, the disabled and the suicidal: the proposals fly in the face of the principle that the law must afford equal protection to all, irrespective of age, gender, race, religion—and state of health.”
Lord Carlile also cautions that the assumption that family members invariably have the deceased’s interests at heart is belied by everyday experience. Lord Mackay and Baroness Butler-Sloss have joined him in warning that the interim guidelines pose “serious dangers for public safety”.
Potential injustice
Thirdly, the guidelines leave it to prosecutors to weigh the factors for and against in any particular case. But this risks not only injustice to the vulnerable but also arbitrariness.
To minimise these problems, the guidelines should state that the presence of any one of the major factors in favour of prosecution (as where the victim had no “clear, settled and informed wish to commit suicide”) should generally result in prosecution, irrespective of the number of factors against. Moreover, to promote consistency, all cases of assisting suicide should continue to be evaluated by the DPP’s Special Crimes Division.
Justice should be tempered by mercy; not undermined by it.
Professor John Keown, Kennedy Institute of Ethics, Georgetown University.
The guidelines can be found at www.cps.gov.uk/consultations/as_consultation.pdf
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