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The suicide dilemma part 2

The general rule of English criminal law is that acts committed outside the jurisdiction: are not covered by such law. However, murder is an exception to this general rule. This is a long-standing exception, but the particular section quoted by Lord Phillips in his judgment was Section 9 of the Offences against the Person Act 1861 which states that "Where any Murder or Manslaughter shall be committed on Land out of the United Kingdom, whether within the Queen’s Dominions or without, and whether the Person killed were a Subject of Her Majesty or not, every Offence committed by any Subject of Her Majesty, in respect of any such Case, whether the same shall amount to the Offence of Murder or of Manslaughter, or of being accessory to Murder or Manslaughter, may be dealt with, inquired of, tried, determined, and punished in any County or Place in England or Ireland in which such Person shall be apprehended or be in Custody, in the same Manner in all respects as if such Offence had been actually committed in that County or Place". The consequence would be that prior to the Suicide Act 1961 if a British subject assisted someone to commit suicide outside the jurisdiction they could have been tried as an accessory to murder.

When the 1961 Act changed the law, it did so providing by section 3(3) that "This Act shall extend to England and Wales only". Lord Phillips analysed some of the conceptual difficulties that this caused, including the possibility that if the Suicide Act did not apply then technically a murder charge could still be possible (as an accessory). Lord Hope, in a careful judgment which analysed painstakingly the legal principles involved, including those set forth in an article "Suicide in Switzerland: Complicity in England?" [2009] Crim L R 335 by Professor Michael Hirst , which suggested that it is not an offence for a person to do acts in England and Wales which aid or abet a suicide by someone else which subsequently takes place in a jurisdiction where suicide is lawful (such as Switzerland), concluded that it probably was an offence and at the very least there was a good argument that it amounted to an offence so as to mean that anyone assisting someone commit suicide would be entitled to regard themselves at serious risk of prosecution. In connection with the argument that the suggested effect of section 3 (3) only extending to England and Wales determined the matter, Lord Hope was witheringly dismissive: " But I can find nothing in the wording of the subsection, bearing in mind the context in which it was enacted, to suggest that it was Parliament’s intention to narrow the circumstances in which the offence which it describes would apply. The anomalous results that this would give rise to are a powerful indication to the contrary. The 1961 Act extends to England and Wales only: section 3(3). It would surely be absurd if the offence which section 2(1) creates could be avoided by aiding or abetting someone who was contemplating suicide to travel from Berwick upon Tweed to Scotland so that he could commit the final act by jumping over the cliffs just over the border at Burnmouth.".

In consequence the position is that it is at the very least seriously arguable that a British citizen who undertakes acts in England and Wales to assist someone to commit suicide in a jurisdiction where suicide is legal commits an offence, and the reality is that that is likely to constitute an offence. Therefore the concerns of the applicant in the Purdy case about her husband were entirely reasonable.

Under section 2(4) of the 1961 Act no proceedings are to be instituted for an offence under that section except by or with the consent of the Director of Public Prosecutions. The applicant in the Purdy case also relied upon article 8 of the European Convention which provides as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.".

Without wishing to do violence to the elegance of the argument on her behalf, the key words in the article relied upon by Debbie Purdy were "respect for his private life" in 8(1) and "in accordance with the law" in 8(2), on the basis that the question of the criteria upon which the DPP would decide whether or not to prosecute was information which she needed to enable her to take a decision that dramatically affected her private life. The applicant entirely accepted that she could not be given a carte blanche which suggested that her husband would not be prosecuted. However knowing the criteria would enable both her hand him to assess the likely risk. This requirement for information of course was in the context of her need to know whether or not she had to act now (before she became so feeble as to require assistance) or whether she could wait until later.

The court decided that the DPP should lay down the applicable principles. We will look next week at the effect of that in practice. However, whether looked at under the Convention or as a matter of commonsense, regardless of your views on suicide or on whether the law should be changed, it must be right that someone should know what the applicable policy on prosecution is so as to know how to govern their affairs. Parliament has decided that someone should effectively be allowed to commit suicide. The circumstances in which someone could be prosecuted for assisting are plainly key matters for someone contemplating suicide to consider. When the effect of a failure to clarify could mean that the person contemplating suicide "jumped the gun" and loses the last bit of active life available to them, it is difficult to see how it could possibly be right to deny them the relevant information which they would need to make that choice.

Michael J. Booth QC