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The suicide dilemma part 3

The practical effect of the House of Lords judgment in the Purdy case will be that the DPP will set down the criteria under which prosecutions are likely to be brought where relatives assist others to commit suicide. None of that will constitute a guarantee of immunity from prosecution in any particular case. However it is already clear that in the majority of cases (given the obvious reluctance to prosecute shown thus far by the DPP despite many assisted suicides) the DPP will be reluctant to prosecute. The DPP will be mindful both of the public interest and also the difficulties of obtaining a conviction from a jury who are likely to be sympathetic to the defendant. However it inevitably depends upon all of the circumstances. If so far from appearing to be assisting someone who has made their own decision there appears to be an element of badgering of the deceased or clear indication that the acts were undertaken for personal gain then the situation is likely to be very different.

The potential difficulties regarding changes in the law were clearly and concisely summarised by Baroness Hale in the Purdy case itself. She considered the House of Lords debate concerning a proposed amendment to the Coroners and Justice Bill which would have rendered the Purdy decision otiose. The amendment proposed by Lord Falconer sought to remove from being an offence "enabling or assisting" the person who would commit suicide "to travel to a country or territory in which assisted dying is lawful" provided that two separate doctors certified that the person planning to commit suicide was terminally ill and had the mental capacity to make the required declaration. In addition the person proposing to commit suicide would have to make an independently witnessed written declaration. This would have to confirm that that person knew the contents of the medical certificates prepared by the two doctors and had decided to travel to a country where assisted dying was lawful for the purpose of obtaining such assistance. The amendment was rejected. As Baroness Hale stated in her judgement: "After three hours of anxious, thoughtful and well-informed debate the House rejected the amendment by 194 votes to 141. In his closing speech, Lord Falconer commented that "Although huge passions were expressed during the debate, I never detected at any stage that anybody in the Committee wanted to prosecute the well intentioned person who went with their loved one to help them in their assisted dying" (Hansard (HL), vol 712, col 633). Many who opposed the amendment were concerned that, as Baroness O'Neill of Bengarve put it, "we have to take account not merely of compassionate assistance but of interested assistance and it is extraordinarily difficult to imagine any drafting that would do that" (col 609). Another former Lord Chancellor, Lord Mackay of Clashfern, explained that "The main reason why I feel that this amendment is not justified is that the present law, with and on the assumption that what is involved is a criminal offence, permits the circumstances to be looked at by the criminal prosecuting authority. . . . The fact that they felt that there was no obligation to raise a prosecution [in recent cases] showed that the circumstances in their view made that a proper decision" (cols 599 - 600). ".

The amendment was thus declined in circumstances where there was a broad measure of agreement that criminal prosecution of the disinterested assisting relative was undesirable, but the view that the discretion of the prosecuting authorities, as presently already been demonstrated, was perhaps a more reliable way of achieving that end than a set procedure which might lead to unforeseen consequences. One problem, as Lord Hope recognised in his judgment in the Purdy case, is the immense difficulty in precisely formulating any change in the law so that such conduct as one wishes to excuse is exempted without there being a consequence in terms of permitting other less desirable conduct.

The present state of the law therefore it is, I think rightly, that it is most unlikely that there will be any prosecution of the "loving relative" assisting someone who plainly knows their own mind and has made their own decision. (It is also possibly true that there would be real difficulties in getting a jury to convict such a person). Criteria will also be laid down by the DPP so that people know what principles are going to be applied in respect of potential prosecutions.

This however in many respects is almost something of a sideshow. Many people want the law to go much further. Is it right that it should, and if it does exactly where should the line be drawn? We will consider that next week.

Michael J. Booth QC