Prosecutorial policies, prosecutorial systems, and the purdy litigation

Criminal Law Review

Volumn , Issue 7, 2010, Pages 543-564

  Rogers, Jonathan ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

Author keywords

Assisted suicide; Constitutionality; Director of public prosecutions; Policies; Prosecutions

Indexed keywords

EID: 77954340800     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (153)

1. R. (on the application of Purdy) v DPP [2009] UKHL 45;
2. -[2009] 3 W.L.R. 403.
3. Swiss Penal Code 1942 art. 115.
4. The same is said to be true of others in the same position: Purdy at [31].
5. The Suicide Act 1961 s.2 has since been amended by s.59
6. of the Coroners and Justice Act 2009, which came into force on February 1, 2010.
7. The effect is that "assistance" and "encouragement" of suicide are now the only modes of liability, but it now only needs to be shown that D has done an act which is capable of assisting or encouraging suicide, with the intention of assisting it. It need not be shown that D's act did in fact assist or encourage V to commit suicide, and the purpose of the amendment is to facilitate the prosecution of those who advise on methods of committing suicide via the internet The offence in s.2 shall continue to be referred to as "assisted suicide" in this article, even though "encouraging or assisting suicide" may become the preferred label for the amended offence.
8. The clarity of s.2(1) of the Suicide Act 1961 was accepted by Lord Hope in Purdy [2009] UKHL 45;
9. -[2009] 3 W.L.R. 403 at [18], [41],
10. and see too the Lord Chief Justice in the same case in the Court of Appeal [2009] EWCA Civ 92;
11. -[2009] 1 Cr. App. R. 32 (p.455) at [2], [72].
12. See too the discussion by J. Horder, "On the Irrelevance of Motive in Criminal Law" in J. Horder (ed.), Oxford Essays in Jurisprudence, 4th series (2000). It is even easier to assert this position in relation to the offence in s.2 as amended, since Parliament had rejected after lengthy debate a proposed amendment to allow a limited defence for those who assist fully autonomous victims.
13. See the debate in the House of Lords at http://www.publications. parliament.uk/pa/ld200809/ldhansrd/text/90707-0006.htm [Accessed April 23, 2010].
14. A (on the application of Pretty) v DPP [2001] UKHL 61;
15. -[2002] 1 A.C. 800.
16. http://vmrw.cps.gov.uk/consultations/as-policy.html [Accessed April 23, 2010]. This shall be referred to as "the Interim Policy".
17. http://www.cps.gov.uk/publications/prosecution/assisted-suicide-policy. html [Accessed April 23, 2010]. This shall be referred to as "the Final Policy". See section 2 below.
18. Pretty v United Kingdom (2002) 35 E.H.R.R. 1 ECtHR.
19. Pretty [2001] UKHL 61;
20. -[2002] 1 A.C. 800.
21. See section 3 below. As is well known, any prosecution may be discontinued "in the public interest". But their Lordships accepted that the Suicide Act 1961 s.2(4) which requires the DPP to give his consent to a prosecution for assisted suicide, did not give him any wider power than he would normally have in exercising prosecutorial discretion. Instead s.2(4) of the Suicide Act 1961 has the same effect as any other "consent provision", namely to prevent the institution of private prosecutions.
22. See Purdy [2009] UKHL 45;
23. -[2009] 3 W.L.R. 403 at [45] per Lord Hope.
24. So they rejected the reasoning in this journal by R. Tur, "Legislative Technique and Human Rights: the Sad Case of Assisted Suicide" [2003] Crim. L.R. 3, 6-10 (arguing that Parliament had intended to allow the DPP to decide the extent to which he should enforce the law of assisted suicide, when it passed s.2(4) of the Suicide Act 1961).
25. All remedies in judicial review are discretionary, and a court may pass an order that it deems appropriate even though neither party has asked for it See the authorities listed in C. Harlow and R. Rawlings, Law and Administration, 3rd edn (2009), pp.722-727. So the solution urged in this article was open to their Lordships in Purdy.
26. I had signalled the potential significance of the word "system" in Pretty v United Kingdom
27. in J. Rogers, "Prosecutors, Courts and Conduct of the Accused which Engages a Qualified Convention Right" (2005) 58 C.L.P. 101, 122-125. In this article I will expand on its possible implications, and is particular the difference between a "policy" and a "system" of enforcement.
28. Perhaps the most obvious other example (not least since this too may relate to a case where the right in art.8 is engaged) is underage sexual activity between consenting children of similar age.
29. Pretty [2001] UKHL 61;
30. -[2002] 1 A.C. 800.
31. Purdy [2009] UKHL 45;
32. -[2009] 3 W.L.R. 403 at [54], per Lord Hope.
33. Hasan and Chaush v Bulgaria (2000) 34 E.H.R.R. 1339 ECtHR at [84].
34. This was a statement of general principle relating to the requirement of legal prescription in art.9(2) of the European Convention, relied on by Lord Hope in Purdy [2009] UKHL 45; [2009] 3 W.L.R. 403 at [43].
35. In addition to Hasan (2000) 34 E.H.R.R. 1339,
36. reference was also made to Kafkaris v Cyprus (2008) 25 B.H.R.C. 591 ECtHR,
37. Gulmez v Turkey (App. No. 16330/02), judgment of May 20, 2008 ECtHR. In the main, the case law tends to deal with public powers the exercise and scope of which are not predictable.
38. The latest such case is now Gillan and Quinton v United Kingdom (App. No.4158/05), judgment of January 12, 2010 ECtHR, holding that the wide stop and search powers under s.45 of the Terrorism Act do engage art.8(1), and are not "in accordance with the law" under art. 8(2) because there is no guidance (neither for the persons stopped, nor for the police) as to the criteria for deciding to conduct a search.
39. http://www.cps.gov.uk/publications/code-for-crown-prosecutors/index.html [Accessed April 23, 2010].
40. Decision on Prosecution-The Death by Suicide of Daniel James (December 9, 2008), para.32, http:/ /www.cps.gov.uk/news/articles/death-by-suicide-of- daniel-James [Accessed April 23, 2010].
41. Decision on Prosecution-The Death by Suicide of Daniel James (December 9, 2008). It seems fair to assume that this step, taken after Mrs Purdy's case had already been heard in the High Court, was designed to anticipate further argument in the higher courts on the issues of accessibility and clarity.
42. Decision on Prosecution-The Death by Suicide of Daniel James (December 9, 2008), para.35.1.
43. Decision on Prosecution-The Death by Suicide of Daniel James (December 9, 2008), para.35.4.
44. Purdy [2009] UKHL 45;
45. -[2009] 3 W.L.R. 403 at [53].
46. See too Lady Hale at [64], Lord Brown at [78] and Lord Neuberger at[102].
47. 27Purdy [2009] UKHL 45;
48. -[2009] 3 W.L. R. at 403 at [30]. This statistic reveals the importance of discretion by the police too. However, paras 9-10 of the Final Policy specify that the Association of Chief Police Officers will recommend that investigators should now liaise with reviewing prosecutors throughout their inquiries.
49. Purdy [2009] UKHL 45;
50. -[2009] 3 W.L.R. 403 at [31].
51. Purdy [2009] UKHL 45;
52. -[2009] 3 W.L.R. 403 at [54] per Lord Hope, at [102] per Lord Neuberger.
53. A (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15;
54. -[2005] 2 A.C. 246.
55. Sixth Code for Crown Prosecutors, s.4.16(n), which supersedes the Fifth Code (as it was discussed in Purdy) and which was published in the same busy week as the Final Policy on assisted suicide. See http://www.cps.gov.uk/ publications/docs/code2010english.pdf[Accessed April 23, 2010]. Factors (j) and (1) may be thought to be relevant pro-prosecution factors in many unlawful chastisement cases too.
56. Pretty [2001] UKHL 61;
57. -[2002] 1 A.C. 800 at [29].
58. Pretty(2002) 35 E.H.R.R. 1 at [74].
59. Pretty (2002) 35 E. H. R. R. 1 at [77].
60. Pretty (2002) 35 E.H.R.R. 1 at [76].
61. The most explicit is Lord Brown: Purdy [2009] UKHL 45;
62. -[2009] 3 W.L.R. 403 at [81].
63. Purdy [2009] UKHL 45;
64. -[2009] 3 W.L.R. 403 at [65].
65. See too Lord Brown at [86].
66. The author agrees with the DPP that while some may object to the use of the word "victim" in cases where the deceased was autonomous and willing to die, nonetheless "in the context of the criminal law it is probably the most suitable term to use": Final Policy, para.7.
67. e.g. whilst the minority age of a victim in itself points towards prosecution, it hardly follows that the adult age of a victim is by itself a mitigating factor: see Final Policy, para.40.
68. Final Policy, para.43.9.
69. Final Policy, para. 43, 14.
70. Final Policy, para.45.1.
71. Final Policy, paras 45.2-45.6.
72. http://www.cps.gov.uk/publications/prosecution/assisted-suicide.html [Accessed April 23, 2010].
73. http://www.cps.gov.uk/consultations/as-responses-introduction.html [Accessed April 23, 2010], para.6.6.
74. See p.549 and accompanying text.
75. Summary of Responses, para.6.10. This statistic inevitably prompts an inference that the respondents were perhaps disproportionately drawn from those with strong religious or other conscientious beliefs concerning the sanctity of life.
76. Summary of Responses, paras 6.14-6.17.
77. Summary of Responses, paras 6.12-6.13.
78. Summary of Responses, paras 6.18-6.19.
79. In the Final Policy, no factors are singled out as being presumptively of particular weight Instead there is a general reminder that in some cases, the presence of one factor on one list may outweigh a host of others on the other list: para.39. Even so, it seems obvious that these two anti-prosecution factors must generally carry greater weight than (say) whether D reported V's suicide to the police.
80. Final Policy, para.47.
81. See http:/www.telegraph.co.uk/news/newstopics/politics/lawanorder/ Assisted-sucide-Debbie-Purdy -welcomes-new-guidelines.html [Accessed April 23, 2010].
82. Pretty (2002) 35 E.H.RJt 1 at [76].
83. Pretty [2001] UKHL 61;
84. -[2002] 1 A.C. 800.
85. See die Sixth Code for Crown Prosecutors, para.4.17, although as ever, there appears to be an in-built resistance to acknowledging the potential impact of resources of prosecutorial decision-making.
86. R. v Commissioner of Police of the Metropolis Ex p. Blackburn [ 1968] 2 Q.B. 118 C A (Civ Div).
87. See Laws L. J. in R. v DPP Exp. Kebilene [2000] 2 A.C. 326 HL at 351, who continued, "so long as an offence is on the statute book, it will ordinarily be presumed that it is to be made good by action against offenders; and this is so notwithstanding the Director's wide discretion whether or not to prosecute in any individual case". This part of the judgment was not doubted subsequently by the House of Lords, which instead overruled the High Court on the scope of judicial review of a decision to prosecute.
88. cf. p.547 and accompanying text.
89. Also, as Lord Neuberger remarked, "each party is, not unreasonably, and for very different reasons, concerned to establish some sort of precedent": Purdy [2009] UKHL 45; [2009] 3 W.L.R. 403 at [97].
90. This was acknowledged in the Summary of Responses, para. 1.15. It seems that the sponsor of the Motion did not understand that the DPP had been ordered to produce the policy.
91. See Final Policy, para.6.
92. Purdy [2009] EWCA Civ 92;
93. -[2009] 1 Cr. App. R. 32 (p.455) at [73]: emphasis added.
94. Lady Hale opened her opinion by referring to Lord Falconer's recently defeated proposal to amend the offence of assisted suicide to allow dying persons to be assisted to travel abroad.
95. See M. Freeman, "Denying Death its Dominion: Thoughts on the Dianne Pretty Case" (2002) 10 Med. L.R. 245.
96. See "Questions about the decision to prosecute Kay Gilderdale", http://www.cps.gov.uk/news/press-statements/questions-about-kay-gilderdale- decision/[Acccssea April 23, 2010]. Notably the jurors, notwithstanding a confession that she had pumped a cocktail of drugs into her daughter with intent to kill, found Mrs Gilderdale not guilty of attempted murder. Mrs Gilderdale had pleaded guilty to assisted suicide as an included offence, and was given a 12-month conditional discharge.
97. This possibility is at the very least open according to Hood [2003] EWCA Crim 2772; [2004] 1 Cr. App. R. (S.) 73 (p.431). Here the basis of the duty of care was rather unclear, but it seems that close relationships involving mutual reliance can of themselves found such duties: Sinclair, Johnson and Smith (1998) 148 N.L.J. 1353.
98. The offence of encouraging or assisting suicide as recently redefined certainly could not apply, for want of any "act" of encouragement or assistance.
99. On this subject generally, see J. Rogers, "Applying the Doctrine of Positive Obligations in the European Convention on Human Rights to Domestic Substantive Criminal Law in Domestic Proceedings" [2003] Crim. L.R. 690.
100. Both options seem to be open. The preference appears to be that issues which may be litigated as an abuse of process ought to be treated as such on trials on indictment: Kebilene [2000] 2 A.C. 326.
101. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 CA.
102. See R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26;
103. -[2001] 2 A.C. 532.
104. It was held by the European Commission of Human Rights in R v United Kingdom ( 1983) 33 DR. 270 EComHR that the abettor of suicide has no independent art.8 rights in relation to his own prosecution. Lord Neuberger seemed cautiously to assume this point: Purdy [2009] UKHL 45;
105. -[2009] 3 W.L.R. 403 at [102].
106. Indeed, Lord Neuberger assumed at [97] that the DPP could change an unpublished policy, and that the desire to pre-empt this possibility may have prompted Mrs Purdy's action. But as with much else in Purdy, by no means are all the implicit chains in the reasoning explored. Why might the DPP be able to change an unpublished policy but not a published one, assuming good reasons to do so in both cases?
107. The doctrine of legitimate expectations is still in the process of development, but a substantive expectation is thought to arise not only in cases where D has personally been promised a particular outcome but also where the "substance" of a policy which would directly affect him has influenced his conduct The effect of an expectation being "substantive" is that departure from the policy may be held to be an abuse of power if it cannot be justified, in light of the effects on those who had relied on it:
108. R. v North and East Devon Health Authority Ex p. Coughlan [2001] Q.B. 213 CA (Civ Div).
109. See R. (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 at [41]-[43].
110. A judge is able, indeed required, to take into account sentencing guidelines which relate to an offence even though they came into force after the offence was committed and have prompted him to pass a higher sentence than he would previously have done:
111. R. v Bao (Chunxia) [2007] EWCA Crim 2781; [2008] 2 Cr. App. R. (S.) 10 (p.61).
112. Further, art.7 ECHR only applies to sentences which have been raised if the sentence passed could not (as opposed to "would not") have been passed at the time of the offence: R. (on the application of Uttley) v Secretary of State for the Home Department [2004] UKHL 38; [2004] 1 W.L.R. 2278.
113. In McQuoid [2009] EWCA Crim 1301;
114. -[2010] 1 Cr. App. R. (S.) 43 (p.269), the defendant complained that he had been the first defendant to be prosecuted by the Financial Services Authority, instead of being dealt with by its regulatory system, consequent to a change in policy in deterring insider dealing. The court acknowledged that he may have felt unfortunate on account of this but nonetheless was not even thereby entitled to a discount on his sentence.
115. Pretty (2002) 35 E.H.R.R. 1 at [76].
116. See section 2 above.
117. Purdy [2009] UKHL 45;
118. -[2009] 3 W.L.R. 403 at [74].
119. See fn.25 above and accompanying text.
120. Pretty (2002) 35 E.H.R.R. 1 at [77].
121. See art. 112 of the Italian Constitution, and s. 152II of the Code of Criminal Procedure (Germany), and for general discussion A. Perrodet, "The Public Prosecutor" in M. Delmas-Marty and J. Spencer (eds), European Criminal Procedures (2002). Many continental prosecutors also have greater powers in imposing their own penalties in cases where a custodial sentence is unlikely, which may alleviate some of the unpleasantness associated with being prosecuted. So in many ways the issues in Purdy are atypically "English" in nature.
122. See J. Fionda, Public Prosecutors and Discretion: a Comparative Study (1995).
123. Pretty (2002) 35 E.H.R.R. 1 at [76] (emphasis added).
124. Non-imprisonment seems at least to be a reasonable expectation. See the comments of the Lord Chief Justice in the Court of Appeal in Purdy [2009] EWCA Civ 92;
125. -[2009] 1 Cr. App. R. 32 (p.455) at [24] and note the conditional discharge given to Mrs Gilderdale (fn. 66 above).
126. Even this is only so to the extent that the existence of the offence has a genuine "chilling effect" on the lives of those who fear possible prosecution for it, and who refrain from making important decisions on account ofthat fear: R. (on the application of Rusbridger) v Attorney General [2003] UKHL 38;
127. -[2004] 1 A.C. 357. This however seems to be satisfied on the facts of Purdy.
128. See the opinion of Lord Bingham in Rimmington [2005] UKHL 63; [2006] 1 A.C. 459 at [29]-[31].
129. See pp.551-552 and accompanying text
130. See the reasoning of Lord Bingham in Pretty [2001] UKHL 61; [2002] 1 A.C. 800, cited above, pp.550-551, fn.31.
131. This is also the approach as set out in the Final Policy, para.42.
132. cf. the analysis of R. Duff, "Strict Liability, Legal Presumptions, and the Presumption of Innocence" in A. Simester (ed.), Appraising Strict Liability (2005).
133. Although the Suicide Act 1961 s.2(4) requires the DPP to consent to a prosecution, the DPP's consent may in fact be given by any Crown Prosecutor, though any such prosecutor must "exercise those powers under the direction of the Director":
134. Prosecution of Offences Act 1985 s.1(6).
135. Indeed, cases of assisted suicide are now dealt with by the Special Crimes Division: Purdy [2009] UKHL 34; [2009] 3 W.L.R. 403 at [98].
136. See fn.32 above.
137. See the analysis in J. Rogers, "Prosecutors, Courts and Conduct" (2005) 58 C.L.P. 101, 123.
138. This draws upon the important distinction between the harms of punishment (for which the court is responsible) and the harms of prosecution, for which the prosecutor is primarily responsible. See further J. Rogers, "Restructuring the Exercise of Prosecutorial Discretion in England" (2006) 26 OJ.L.S. 775, 788-791.
139. See para.4.17(g) of the Sixth Code (which also appeared in previous versions).
140. Decision on Prosecution-The Death by Suicide of Daniel James (December 9, 2008), para.35.4: "Daniel's suicide has caused them profound distress. That is a factor against prosecution."
141. On the general independence of prosecutors in devising strategies of enforcement, see Rogers, "Restructuring the Exercise of Prosecutorial Discretion" (2006) 26 OJ.L.S. 775, 778-781.
142. Sadly little was said of this in Purdy, though Lord Neuberger paid lip service to the point at [99]-[101].
143. It should be recalled too that the European Court in Pretty had said that the state should bear in mind the appropriate needs of "deterrence" as well as retribution: Pretty (2002) 35 E.H.R.R. 1 at [76].
144. Buckley v United Kingdom (1997) 23 E.H.R.R 101 ECtHR.
145. Buckley (l997) 23 E.H.R.R 101 at [76].
146. l04See too W v United Kingdom (1988) 10 E.H.R.R 29 ECtHR (holding that parents should be consulted over the supposed need to remove their children for their own welfare).
147. See, e.g. A. Ashworth, "The 'Public Interest' Element in Prosecutions" [1987] Crim. L.R. 595, 605-606;
148. J. Rogers, "Restructuring the Exercise of Prosecutorial Discretion" (2006) 26 OJ.L.S. 775, 800-801.
149. Final Policy, para.45.6.
150. One oddity in the Sixth "general" Code is that it says (for the first time) that suspects may present evidence to prosecutors, but apparently only via the police or other investigative agencies: para.3.3.
151. Mrs Purdy is quoted as having said, "if they wanted to make an example of someone, they would be more likely to go for him than some 78-year-old war veteran": see the full interview in http://women. timesonline.co.uk/tol/life-and style/women/the-way-we-live/article4836537.ece [Accessed April 23, 2010].
152. He wouldn't have me to protect him. He would be grieving for his wife; he'd need to deal with what had happened... it doesn't bear thinking about that he would be further hurt He says he would be prepared to go to jail for me, no question, but I love him and, however remote the chance, I won't let that happen.": http:/ /women.timesonline.co.uk/tol/life-and-style/women/the-way- we-live/article4836537, [Accessed April 23, 2010].
153. Remedies for perceived racial discrimination in prosecutorial decision-making are more commonly sought in the US where it is possible for defendants to claim a violation of the Equal Protection Clause of the US Constitution (Fourteenth Amendment). For an account of the leading cases, see A. Davis, "Prosecution and Race: The Power and Privilege of Discretion" (1998) 67 Fordham Law Review 13. The cause of action is hard to establish in practice but is worth noting that some of the problems identified by Davis-that neither reasons for the present decision, nor records of previous decisions have to be offered to the defendant-would not apply under the system as proposed here. Notably, Davis suggests that extra disclosure of the prosecutor's reasons to the defendant would in itself lead to less unsatisfactory decisions being made in the first place.