New prosecution guidelines 'not fit for purpose'
What Does the CPS Policy Say?
It lists 16 factors which might incline the Director of Public Prosecutions (DPP) to prosecute in cases where there is evidence of assistance with suicide having been given and 13 factors which might incline him against doing so. “Each case must be decided on its own facts and on its own merits”, says the consultation document.
What's Wrong With That?
Nowhere does the CPS policy statement remind its readers that, with breaches of the criminal law, there is a presumption in favour of prosecuting unless there are strong reasons to the contrary. This is required by the Code for Crown Prosecutors. In CNK's view, the statement indicates “a shift in the centre of gravity” as regards prosecution policy for assisted suicide. It risks misleading anyone minded to assist a suicide into believing that it is a matter of 'on the one hand' and 'on the other hand' whether they will be prosecuted. In CNK's view, this “poses serious risks of misinterpretation”. The policy statement:
“gives the appearance of a shift in the role of the CPS from one of enforcing the law other than in exceptional circumstances to one of arbitrating, in an even-handed manner, between the merits and demerits of prosecuting those who assist suicides”.
“The reader is left with the impression, not that the law will be enforced unless there are good reasons not to do so, but that an assister of suicide may be prosecuted in some circumstances but not in others”. Such an impression, were it to take hold, poses serious dangers for public safety”.
What is CNK's Answer to that?
The policy statement needs to be rewritten:
“It should start with a clear statement that assisting a suicide is a criminal offence and that, in the absence of a decision by Parliament to change the law, it will remain so. It should proceed from there to state, in accordance with the Code for Crown Prosecutors, that there will be a presumption in favour of prosecution in cases of assisted suicide unless there are compelling public interest factors that point in the opposite direction. It should then list what those factors might be, making clear however that each case stands to be judged on its own merits and that no one should undertake action in breach of the law on the false assumption that he or she has ticked the right boxes to secure what might mistakenly be seen as immunity from prosecution”.
What Else is Wrong?
While some of the individual criteria that are proposed for or against prosecution are acceptable and others can be accepted provided they are amended or clarified, a number are “unacceptable under any circumstances”.For example, among the factors proposed as tending against a prosecution are that the deceased was seriously ill or incurably disabled or had a history of suicide attempts. In CNK's view these proposals are discriminatory as well as dangerous:
“It is a fundamental principle of the criminal law that its protection should be afforded equally to all irrespective of their state of health. To suggest that the presence in the victim prior to his or her death of a terminal or degenerative illness or a severe physical disability should be a mitigating factor in deciding whether or not the assister of that person's suicide should be prosecuted is discriminatory”
“Suicidal tendencies are normally regarded as evidence of mental disorder and as a reason for treatment and care…The policy statement is making a questionable assumption – that a 'clear, settled and informed with to commit suicide' indicates a state of rationality rather than one of mental disorder”.
CNK's response asks how these proposals would affect “institutions such as prisons or mental hospitals in which prisoners or patients considered to be at risk of self-harm are placed on 'suicide watch' in order to prevent or frustrate suicide attempts. What about paramedics or doctors and nurses in hospital A&E departments who, under existing arrangements, are required to try and resuscitate those who have attempted suicide?”
Another problem arises with the proposal that “spouses, partners and close relatives and personal friends' should be accorded special category status as assisters of suicide. CNK comments that:
“While it is conceivable that a spouse or close family member might assist a suicide out of a feeling of compassion for the victim, the reality is that many cases of abuse, and especially elder abuse, are committed within the family environment. The notion that those closest to the victim are necessarily 'loved ones' is fallacious”.
The CPS consultation document rightly states that “only Parliament can change the law”. Yet its proposal that serious illness or disability might be a mitigating factor in assisting a suicide “flies in the face of the declared will of Parliament”, which has twice in the last four years firmly rejected legalisation of assisted suicide in such cases. The CPS proposal in this respect is therefore “perverse and, arguably, an infringement of Parliament's authority”.
In sum, the CPS interim policy statement “is not fit for purpose in its current form”.There are “serious defects both in its underlying principles and in several of the specific prosecution criteria proposed”.It therefore“is in need of reorientation and revision”.CNK Alliance