23 September 2009

Assisting suicide in Scotland (again)...

Just a couple of documents today, for your interest and edification. Firstly, the preliminary and transitory guidance on the prosecution of individuals for assisting suicide in England and Wales, issued by the high heid yin of the Crown Prosecution Service, Director of Public Prosecutions, Keir Starmer. This publication was prodded from the prosecutors, as most of you will recall, as a result of Debbie Purdy's litigation on the uncertainty and opacity of the determining reasons why the CPS may decide to prosecute or not in cases of assisted suicide. Secondly, in response to this document, I notice that on his Scots Law News blog, the estimable Professor Hector MacQueen (heroically named soul he is) has been able to produce a statement from wur ain Elish Angioni the Lord Advocate contextualising any Scottish response:

Launching his interim policy on prosecuting cases of assisted suicide today, the Director of Public Prosecutions, Keir Starmer QC, called for public participation in a 12-week consultation on the factors he has identified which will be taken into account when considering whether prosecutions will be brought for this offence.

Mr Starmer said: "Following the instructions of the Law Lords in the case of Debbie Purdy, I am today clarifying those factors of public interest which I believe weigh for or against prosecuting someone for assisting another to take their own life. Assisting suicide has been a criminal offence for nearly fifty years and my interim policy does nothing to change that.

"There are also no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take."

The public interest factors in favour of prosecution identified in the interim policy include that:

  • The victim was under 18 years of age;
  • The victim's capacity to reach an informed decision was adversely affected by a recognised mental illness or learning difficulty;
  • The victim did not have a clear, settled and informed wish to commit suicide; for example, the victim's history suggests that his or her wish to commit suicide was temporary or subject to change;
  • The victim did not indicate unequivocally to the suspect that he or she wished to commit suicide;
  • The victim did not ask personally on his or her own initiative for the assistance of the suspect;
  • The victim did not have a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition from which there was no possibility of recovery;
  • The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim;
  • The suspect persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim's decision to do so; and did not take reasonable steps to ensure that any other person did not do so.

The public interest factors against a prosecution include that:

  • The victim had a clear, settled and informed wish to commit suicide;
  • The victim indicated unequivocally to the suspect that he or she wished to commit suicide;
  • The victim asked personally on his or her own initiative for the assistance of the suspect;
  • The victim had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery;
  • The suspect was wholly motivated by compassion;
  • The suspect was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship;
  • The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment.

Mr Starmer continued: "As this policy states, assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side of the scales has the greater number. Each case must be considered on its own facts and its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.

"I also want to make it perfectly clear that this policy does not, in any way, permit euthanasia. The taking of life by another person is murder or manslaughter - which are among the most serious criminal offences.

"I recognise how sensitive this area of law is and I respect the fact that there are many people who hold strong views on assisted suicide. I want to hear those views and that is why I have also launched a public consultation today. By considering as many views as possible, I can produce a final policy which is faithful to both the law and public feeling."

The interim policy can be seen at www.cps.gov.uk and from today the public can feedback their comments directly. The public consultation will be open until 16 December, after which a summary of the consultation responses will be published. The finalised policy will be issued in Spring 2010.

And secondly, what the Scots Lord Advocate had to say. She confirms that the Crown's understanding of the law is consonant with mine:

"The guidance issued by the Director of Public Prosecutions for England and Wales will only apply to cases where an offence of assisting suicide takes place within England and Wales. It will not apply to Scotland.

"The DPP's guidance follows the decision of the House of Lords in the English case of Purdy. This case applies only to England and Wales and to the statutory offence of assisting the suicide of another under section 2 of the Suicide Act 1961. This offence does not apply in Scotland, where, depending on the particular facts and circumstances of the case, the law of homicide may apply.

"The Crown Office and Procurator Fiscal Service will give careful consideration to the implications of the DPP's interim guidance, the outcome of his public consultation and developments in other jurisdictions.

"The Crown recognises the importance of this issue, but any change in the current law related to homicide is properly a matter for the Scottish Parliament."

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