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The suicide dilemma part 1

Few issues raise such passionate feeling as the question of what the law should provide for regarding assisting suicide. Its status as a terrible sin within the Judaeo-Christian tradition has almost certainly influenced the feelings and approach which surround this topic, even for those who have no time for such traditions (and quite apart from any other motivation are possibly reacting what they see as a grotesque injustice arising from that tradition). That view of it as a sin of course applies to those people acting in their right mind and there will often have been a view that someone who killed trying to kill themselves had a disturbed mind at the particular time. It is also notable that during inquests if there is any room for doubt the verdict is likely to be accidental death rather than suicide. There are many cases where reading between the lines it seemed completely clear that this was suicide, which may in any verdict be categorised as an attempted cry for help or an attempt merely to self harm rather than kill. I agree with the principle that there should only be a finding of suicide where the evidence is beyond doubt, but it is also clear that is an approach routinely adopted during inquests.

I should note, since everyone has a viewpoint, that I have been brought up in that Judaeo-Christian tradition and hence personally regard suicide with particular horror, whilst recognising that people who kill themselves whilst mentally ill cannot really be regarded as suicides. I also readily recognise that some people will find themselves through disease or illness (mental or physical) as in a state which effectively does not amount to life at all and therefore would not so much regard killing themselves as suicide as recognising the fact that they are about to die as a person and are unwilling to leave a lingering empty degraded shell, or alternatively are unwilling to lead a life so full of pain and lack of ability to undertake normal human functions as to be effectively meaningless. I regard striking the right balance in this issue as one of the most enormously challenging legal and moral dilemmas that we face, and whereas many people regard this as a straightforward issue one way or the other I see it as anything but.

The present ability of medicine to keep people alive who would otherwise surely die and who in consequence will be left with a life of considerable pain and handicap devoid of any real human existence and dignity has lent added vigour to this debate. This is particularly so because frequently the person will want to travel abroad to commit suicide in a jurisdiction where it is lawful to assist someone to commit suicide. The dilemma for a person whose quality of life is deteriorating therefore can be summed up in this way: if they are certain that they want to commit suicide when they reach that stage, do they have to travel now before life has been unbearable, so as to avoid any loved ones who assist them being prosecuted, or can they wait until it is really necessary? (I should note that there would possibly be considerable disagreement about posing the question in this way given that in itself probably be regarded in some quarters as an unduly pejorative analysis). There is thus a very real issue now as to whether the law should be changed and if it is changed what exactly should be permitted. The recent House of Lords decision in the case of Debbie Purdy, (R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent) [2009] UKHL 45) dealing with the question of assisted suicide, has been widely debated without many commentators properly or fully reflecting the decision actually stated.

It is important to bear in mind the legal background regarding suicide in order to understand the issues which arise. Those are concisely yet fully set out in the Purdy case judgment of

Lord Phillips of Worth Matravers

, the Senior Law Lord/Supreme Court Judge to be, which I would recommend anyone interested in this area to read. I shall summarise the position, not due to any delusions of grandeur that I can do a similar job but because a summary is necessary for the purpose of these articles for those who have not read the judgments in the Purdy case.

Before 1961 suicide was illegal. The Suicide Act 1961 changed that, but by section 2 retained as a criminal offence assisting someone to commit suicide, by aiding and abetting counselling or procuring the suicide. Suicide was at common law a felony, effectively self-murder, and any suicide's property was forfeited. Attempted suicide was a misdemeanour in the same way as any other attempt to commit a felony. If you were present at a suicide and helped you could be guilty of murder as a principal in the second degree. If you were not present but assisted beforehand then you were an accessory before the fact to the suicide, but in practice not be prosecuted because of the common law rule that an accessory before the fact to a felony could only be prosecuted once the principal offender had been prosecuted to conviction (which you could obviously not do with a dead person). Section 1 of the Accessories and Abettors Act 1861 effectively overruled this common law rule. This meant that those who assisted who had not been present could also be tried for murder as an accessory before the fact. However section 4(1) of the Homicide Act 1957 reduced this to manslaughter in the case of a suicide pact between the person charged and the person committing suicide.

That therefore is the historical background to the act of assisting in suicide. The background to the position regarding assisting in "offences" committed abroad also needs to be considered and we will commence with that next week.

Michael J. Booth QC