By Jo Morris, Barrister
The dilemma of assisted suicide
The controversy of mercy killing is unresolved. It is capable of being either an act of compassion or that of unconscionable self interest. The law recognises no difference between these motivations. Despite challenges from Diane Pretty and Debbie Purdy, mercy killing remains an offence in the UK. Assisting a person to commit suicide is an offence under the Suicide Act 1961. Killing a person not capable of committing suicide even at their request is murder or manslaughter. It is no defence to say that the best interests of the victim were served. While the DPP have been forced to publicise their policy upon which factors will be considered when a prosecution is contemplated that goes only to the public interest in any prosecution. The law recognises no offence or defence, full or partial, of mercy killing.
Suicide is not a crime. Until 1961 suicide and its attempt were prohibited. S1 Suicide Act 1961 provided that the 'rule of law whereby it is a crime for a person to commit suicide is hereby abrogated'. The offence lies in assisting another person to commit suicide. S2 Suicide Act 1961 provides that 'A person [D] commits an offence if a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person and b) D's act was intended to encourage or assist suicide or an attempt'. Proceedings can only be brought with the consent of the DPP. This is an unusual crime. It places a secondary participant at risk of penal consequences for assisting in an act that is lawful on the part of his principal. The assisted person is also the victim. He is often a willing victim who is the inciter of the unlawful act. However, it remains an offence until Parliament intervene.
Even a suicide pact leading to the death of one party and not the other is unlawful. The case of R v Sweeney (1986) 8 Cr. App. R. (S) 419 establishes that even desperate people must be deterred from taking life. This case concerned a husband suffering from depression and a wife from muscular dystrophy. They agreed that they would commit suicide by setting fire to their car whilst inside it. The wife tried to escape but was unable and died. Mr. Sweeney suffered serious burns. He received two years following a plea to manslaughter.
Taking the life of a person suffering from a condition that prevents them committing suicide is murder. The fact that the victim had consented or would have done so if they had been able is not a defence. In fact, such a killing often contains many of the statutorily aggravating features to be found in the current sentencing guidelines. There is a clear intention to kill and the victim is arguably vulnerable while the perpetrator occupies a position of trust. Such offences fall into the top tier of homicide for that reason.
Diane Pretty brought a challenge to this in 2002. Ms. Pretty faced the what she feared would be an undignified end. She was unable to take her own life without assistance. She applied to the DPP for an undertaking that her husband would not be prosecuted if he assisted her. Ms. Pretty argued that Article 2 Human Rights Act protected her right to determine her own death, that failing to alleviate her suffering amounted to inhuman and degrading treatment contrary to Article 3, that her rights to privacy and freedom of conscience under Articles 8 and 9 were infringed without justification and that she was the subject of discrimination in breach of Article 14 as an able bodied person might commit suicide at any time. The House of Lords reject her appeal finding that the DPP had no power to undertake that a crime not yet committed would be immune from prosecution. This ruling was upheld by the European Court of Human Rights.
Debbie Purdy's appeal in 2009 met with greater success although the request that she made was more palatable than Ms. Pretty's. Ms. Purdy suffered from a terminal condition and wished to end her life when she worsened. CPS had refused to create a specific policy covering which factors would be considered when a prosecution was contemplated. Ms. Purdy brought a judicial review of the DPP's decision not to publish such a policy. The Court of Appeal rejected her challenge but a further appeal to the House of Lords lead to a determination that Article 8 of the HRA was engaged in this case. Ms. Purdy did not seek immunity from prosecution but information from the DPP. The Court accepted that it was information she needed so that she could take a decision affecting her private life. The DPP were directed to publish a policy explaining which factors will be considered when the public interest of a prosecution is assessed.
Despite Ms. Purdy's success it is important to note that her case did not involve a consideration of whether it should continue to be an offence in the UK to help another to take their own life. The Court noted that would be a matter for Parliament. This judgment has not legalised euthanasia in the UK. The DPP have been forced to declare publicly which factors will be considered and there have been no prosecutions in recent years. However, although these are killers who, in moral terms, attract the most sympathy their actions do amount to unlawful homicide.