Assisted suicide and identifying the public interest in the decision to prosecute

Criminal Law Review

Volumn , Issue 10, 2010, Pages 737-751

  Daw, Roger ^a   Solomon, Alex ^a  

^a Crown Prosecution Service   (United Kingdom)

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EID: 77957656938     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (54)

1. R. (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45;
2. [2010] 1 A. C. 345.
3. R. (on the application of Purdy) v DPP [2009] UKHL 45 at [55].
4. As amended by s.59 of the Coroners and Justice Act 2009.
5. Although expressed in identical language, this is not to be confused with the principle of legality relating to statutory interpretation in the context of an individual's rights to which Lord Hoffman made reference in R. v Secretary of State for the Home Department, Ex p. Simms [2002] 2 A. C. 115;
6. [1999] 3 W. L. R. 328 HL.
7. The use of "Out-of-Court disposals" remains a subject on which there are many views (see: Ian Brownlee, "Conditional cautions and fair trial rights in England and Wales: form versus substance in the diversionary agenda?" [2007] Crim. L. R. 129) but the number of such disposals makes them an integral part of the criminal justice system, without which serious questions arise about the capacity of the courts to deal with all criminal conduct.
8. Prosecution of Offences Act 1879.
9. The Times October 7, 1950.
10. Daily Telegraph, October 7, 1950.
11. Hansard, HC Vol. 483, col.679 (January 29, 1951), paras 681-682.
12. Hansard, HC Vol. 188, col.2105 (December 1, 1925).
13. Hansard, HC Vol. 483, col.679 (January 29, 1951), paras 679-683.
14. See fn. 13 above.
15. Prosecution of Offences Act. 1985.
16. For discussion, see Andrew Sanders, "An independent Crown Prosecution Service?" [1986] Crim. L. R. 16.
17. Prosecution of Offences Act 1985 s.1 (1) (a).
18. In accordance with ss.10 (3) and 9 (2) of the Prosecution of Offences Act 1985.
19. Crown Prosecution Service, Code for Crown Prosecutors, 6th edn (London: CPS Policy Directorate February 22, 2010).
20. There has never been a full debate on what is described as the Full Code Test.
21. For example, the Attorney General's Written Ministerial Statement of February 22 2010 at col. WS64.
22. For example, R. (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45.
23. Code for Crown Prosecutors 2010 s.4.
24. For example, the Royal Commission on Criminal Justice Report HMSO, 1993. Cmnd. 2263.
25. For example, A. Ashworth and J. Fionda, "Prosecution, Accountability and the Public Interest" [1994] Crim. L. R. 894, 895. (Pubitemid 24837142)
26. R. (on the application of B) v DPP [2009] EWHC 106 (Admin); [2009] 1 W. L. R. 2072;
27. [2009] 1 Cr. App. R. 38.
28. Code for Crown Prosecutors, s.12, in particular, para.12.2.
29. CPS Annual Lecture delivered by the Director, Keir Starmer Q. C., on October 21, 2009.
30. Code for Crown Prosecutors, para.4.16 (c).
31. Code for Crown Prosecutors, para.4.16 (a).
32. Code for Crown Prosecutors, para.4.17 (d).
33. Code for Crown Prosecutors, para.4.16 (g).
34. For example, there were two public consultation exercises undertaken before the sixth edition of the Code was published in February 2010.
35. Eighty-five responses were received in the Public Consultation Exercise about the Code for Crown Prosecutors which closed on January 11, 2010. A Summary of Responses was published by the Crown Prosecution Service on February 22, 2010 and is available at: http.//www.cps.gov. uk [Accessed August 9, 2010}.
36. Of course, the public's view, whilst persuasive, cannot be determinative of any particular issue, or else the foundation of the decision whether to prosecute may be ceded to those who espouse a particular cause without reference to other considerations.
37. R. (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45.
38. R. (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 at [54]
39. R. (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 at [102].
40. And for many, it crosses into the area of voluntary euthanasia and mercy killing: as the policy makes clear, as a matter of law, there is a substantial difference between assisted suicide and mercy killing, which is homicide. Different considerations clearly apply when someone else takes another's life, no matter the alleged motive for doing so: see paras 32-34 of the policy.
41. Available at http://www.cps.gov. uk [Accessed August 9, 2010].
42. CPS, Code for Crown Prosecutors, 6th edn (London: CPS Policy Directorate, February 22, 2010), paras 4.16 and 4.17.
43. For example, para.4S (1) of the final policy (the victim has reached a voluntary, clear, settled and informed decision to commit suicide) is based on para.21 (1) of the interim policy (the victim has a clear, settled and informed wish to commit suicide), the amendments being a result of the comments that were received during the public consultation exercise.
44. CPS, Code for Crown Prosecutors, 6th edn (London: CPS Policy Directorate, February 22, 2010), paras 4.12-4.14.
45. CPS, Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, (London: CPS Policy Directorate, February 2010), paras 36-38.
46. Law on Assisted Suicide tabled by Ann Widdecombe on December 1, 2009 signed by over 10% of Members of the House of Commons: "That this House notes the judgement of the Law Lords in the appeal of Debbie Purdy requiring that the Director of Public Prosecutions (DPP) publish guidelines for those contemplating assisting another to commit suicide; further notes that in following the Law Lords, the DPP has produced a document informing people what to do to avoid prosecution; further notes that the DPP, like the Law Lords, states clearly that it is the function of Parliament, not the judiciary to make and amend legislation; considers that the guidelines override the will of Parliament; recalls that twice recently the House of Lords has rejected by a clear majority attempts to change the law on assisted suicide, the second time in July 2009 when a clause to introduce assisted suicide through the Coroners and Justice Bill was defeated by 191 votes to 141; further notes the comment of Lord Carlile of Berriew QC, a foremost human rights lawyer, that before prosecution for theft or grievous bodily harm, 'we are not told how much we can steal... or how much injury we can inflict...'; further notes that through indicating to would-be offenders how best to avoid prosecution, the DPP will put the vulnerable at grave risk; and calls on the Government to require the withdrawal of the guidelines, leaving Parliament rather than the judiciary or unelected civil servants to consider whether to change the law, and making it clear to the judiciary that they are not permitted to override the supremacy of Parliament"
47. Public Consultation Exercise on the interim Policy for Prosecutors in respect of Cases of Assisted Suicide issued by the Director of Public Prosecutions: Summary of Responses, February 2010.
48. Table 6, Summary of Responses, February 2010.
49. Population Estimates, Office for National Statistics, August 27, 2009.
50. Paragraph 45 (1) and its reverse in para.43 (3) of the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, February 2010.
51. See fh.45 above.
52. Code for Crown Prosecutors, para. 4. 16 (a).
53. Code for Crown Prosecutors, para 4. 12.
54. For discussion of the substance of the Director's policy in relation to assisted suicide, see Jonathan Rogers "Prosecutional Policies, Prosecutional systems and the Purdy Litigation" [2010] Crim. L. R. 543: Ed.