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Q&A: DPP Prosecution guidelines

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21st September 2009

Questions and Answers

Q&A: DPP Prosecution guidelines

The DPP Prosecution guidelines

On 30 July the House of Lords accepted an Appeal by Ms Debbie Purdy, who has multiple sclerosis, against a refusal by the Director of Public Prosecutions (DPP) to set out the circumstances in which her husband would be prosecuted if, at some point in the future, he were to assist her to go abroad for assisted suicide in a jurisdiction where the practice is legal.

Ms Purdy's case had previously been rejected by the High Court and the Court of Appeal.

The House of Lords however allowed Ms Purdy's Appeal and required the DPP (Keir Starmer) 'to prepare an offence-specific policy identifying the facts and circumstances which he will take into account on deciding, in cases such as Ms Purdy's, whether or not to prosecute'. The draft guidelines were published on Wednesday 23 September.

Assisted Suicide remains an offence so what actually has changed?
There is no change in the law. It has not been illegal to commit suicide in Britain since 1961 but to help someone else to do it remains an offence carrying a prison sentence of up to 14 years. Second, there is no change in how the law is to be administered. The current law gives the DPP discretion about whether to prosecute after considering whether there is enough evidence to proceed and whether it is in the public interest to do so; so cases of alleged assisted suicide will still need to be investigated by the police. All that has changed is that the DPP will now have to make public the facts and circumstances he takes into account in deciding whether to bring a prosecution.

Are family members who assist in a suicide still at high risk of being prosecuted?
This will depend on what criteria the DPP includes in his final guidance and we will have to await their publication to be certain. However Keir Starmer has already hinted, in an interview with Andrew Marr on Sunday 20 September, that in cases where a person has a 'clear and settled wish' to end his or her life and where those assisting have not 'encouraged' suicide and have 'nothing to gain from the death' prosecutions will be 'less likely'. He made particular reference to the exceptional case of paralysed rugby player Daniel James, whose parents travelled with him to end his life at the Dignitas Suicide facility in Zurich, Switzerland. No prosecution was brought against the parents in this case. However the DPP has chosen his words very carefully - talking of circumstances where a prosecution would 'more or less likely' - but he will not be able to grant immunity ahead of time in any specific case. In addition, the gain by an assister from an assisted suicide he said could be 'any advantage, financial or otherwise' and in almost all cases of assisted suicide it could be argued that family members do have something to gain – financially in terms of relief paying for care or hastening an inheritance, or emotionally by relief of a care burden. Some commentators have therefore suggested that the guidelines could actually lead to more investigations and prosecutions than currently.

Will this development result in an increase in the numbers carrying out assisted suicide?
This will depend on the specific content of the guidelines. At present the number of cases of assisted suicide has been very small – just over 100 people have travelled to Zurich over the last five years during which time over three million British people have died from all other causes. So we are talking of less than one in 30,000 deaths. Based on surveys published in recent years by Professor Clive Seale at Brunel University assisted suicide is currently extremely rare in Britain itself. We will also have to see how the draft guidelines are received. We now enter a period of public consultation on the guidelines with definitive guidelines not being published until the New Year. The DPP is in some ways in an unenviable position as his actions will in future be subject to much more public scrutiny than before. If his guidelines are too liberal he could be accused of bypassing Parliament and changing the law and may find his guidelines subject to judicial review. On the other hand, if he takes a more conservative line people might legitimately ask why he is not bringing more prosecutions.

How will Care Not Killing be responding?
CNK are studying the draft guidelines carefully and will be making a considered formal response. We are very concerned to ensure that the guidelines do not, in any way, alter the current law or weaken its effectiveness. We believe that the current law strikes the right balance allowing the DPP to exercise discretion in whether to bring prosecutions and allowing judges to exercise similar discretion in sentencing. The blanket prohibition on assisting with suicide in the Suicide Act 1961 acts as a very strong deterrent and helps to limit cases of abuse as evidenced by the very small number of cases we are currently seeing. Our hope is that things will stay this way. There is certainly no indication from the DPP that he intends to exempt from prosecution the categories of cases that pro-euthanasia campaigners have been pushing for – ie. mentally competent, terminally ill people who are seeking help to end their lives. Such a change in practice would be directly contrary to the expressed will of Parliament and would inevitably place subtle pressure on vulnerable people to request early death so as not to be a burden to family, carers or the state.

How likely is it that Parliament will make assisted suicide legal?
Parliament has twice in the last four years (with respect to the 2006 Joffe Bill and the 2009 Falconer amendment to the Coroners and Justice Bill) rejected attempts to legalise assisted suicide. On both occasions members of the House of Lords were persuaded that any change in the law would compromise public safety and leaders of disabled people's groups, doctors' leaders and leading lawyers were vocal in their public opposition to any liberalisation. Over the last few months leading government ministers including Prime Minister Gordon Brown, Chief Justice Jack Straw and Children's Minister Ed Balls have said that they personally oppose any change in the law on grounds that it would place pressure on vulnerable people, such as the elderly, to end their lives. This pressure is a heightened concern at a time of economic recession when many families are already under financial pressure and cuts in benefits and health care are looming. We may well see, of course, further attempts by members of both Houses of Parliament to introduce further bills in the near future in an attempt to weaken the law but indications are that Parliament will continue to believe that protecting the vulnerable should take precedence over allowing liberties to a few determined individuals.

References

Assisted Suicide and a moral minefield (Daily Mail, 21 September 2009)

New guidance on assisted suicide (BBC News, 20 September 2009)

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