Director of Public Prosecutions faces new legal challenge for 'clarifying' guidelines on prosecutions for assisted suicide
**UPDATE: On 28 April, the High Court allowed the Judicial Review to go forward.**
Perhaps surprisingly, the Sunday Times was the only broadsheet newspaper to cover a landmark case which challenges the powers of the Crown Prosecution Service.
The crux of the Sunday Times report (£) is that
A woman who was once so paralysed she could only wink her right eye will this week launch a High Court challenge against "liberal" guidelines on assisted suicide brought in by Alison Saunders, the embattled director of public prosecutions (DPP).
Nikki Kenward, 62, will on Tuesday seek a judicial review after doctors and nurses who help severely disabled or terminally ill people to take their own lives were told that they are now less likely to face criminal charges.
Kenward, a former theatre manager, was struck down by Guillain-Barré syndrome in 1990, aged 37.
She was initially fully paralysed for more than five months, and has been in a wheelchair since. She cannot tie her laces or hold a needle, but had a play staged last year and campaigns against euthanasia and assisted suicide through the Distant Voices pressure group. Her case is backed by the Christian Legal Centre.
Lawyers for Kenward will argue that Saunders exceeded her powers with what she called a 'clarification' to the guidelines on prosecution for assisted suicide which she made last October.
They will also argue that she has entered a policy realm that should properly be a matter not for her but for Parliament. They will further say that the Attorney-General has failed in his duty to 'superintend' the DPP. In other words, they will claim that she has gone beyond her remit which is to uphold the law and not to make the law.
To quote the Sunday Times again:
They are expected to argue Saunders's guidance will "enable healthcare professionals operating on an ideological or other premise to offer their services to a person wishing to commit suicide . . . this is crossing the Rubicon". They will add: it will "make any prohibition on a Dignitas-style of assisted suicide difficult to resist".
"[It] weakens the protection given by parliament to people . . . coming under pressure to commit assisted suicide."
The fuller background to this case deserves unpacking.
Back in 2009, as a result of the Law Lords' judgement in the Debbie Purdy case, the DPP was required to make public the criteria by which he (then Keir Starmer) decided whether a prosecution in a given case of assisted suicide was in the public interest.
He published an interim policy and put it out to public consultation. After the consultation was completed he modified this interim policy and published his definitive policy in February 2010. The summary of responses received and the responses themselves are still in the public domain.
The interim policy did not contain a paragraph about the role of medical professionals but as a result of the consultation one was included in the definitive policy.
It now says that a prosecution is more likely to be required if
14. 'the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;'
Keir Starmer gave his reasons for including the new clause here.
Saunders, Starmer's successor, subsequently 'clarified' the words underlined below last October after encouragement by the Supreme Court in a June 2014 ruling:
For the avoidance of doubt the words "and the victim was in his or her care" qualify all of the preceding parts of this paragraph [43.14]. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.
The key questions raised by Kenward's case are whether this amounts to a change in the policy or merely a clarification, and whether the DPP should have made the change without wider consulting.
It is at least probable that the DPP has actually crossed the line in both instances. Among the relevant factors are:
It seems to be the case that the DPP has not merely 'clarified', but actually changed the meaning and scope of the guidance. Furthermore she has made the change without proper consultation.
We await the result of Kenward's legal challenge with great interest.