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Mens rea, motive and assisted suicide: does the DPP's Policy go too far?

Published online by Cambridge University Press:  02 January 2018

Catherine O'Sullivan
Catherine O'Sullivan*
Affiliation:
University College Cork
*
Catherine O'Sullivan, Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork, Ireland. Email: [email protected]
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Abstract

The issue of decriminalising euthanasia and/or assisted suicide has been the subject of a number of high-profile cases, the most recent of which was the Court of Appeal decision in R (Nicklinson & Lamb) v Ministry of Justice [2013] EWCA Civ 961. This paper will focus on the offence of assisted suicide and Martin's argument that the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, issued by the DPP following the House of Lords' final judgment in R (Purdy) v DPP [2009] UKHL 45 failed to provide foreseeability where a prospective assister was not someone with an emotional connection to the requester. The success of this claim offers a fresh opportunity to examine a somewhat neglected aspect of the Policy that emanated from the Purdy case, namely its potential challenge to the oft-stated claim that motive is irrelevant to mens rea. It is my contention that the Policy has (effectively) amended s 2 of the Suicide Act 1961 by making compassion/motive a definitional element of the offence, and that this is problematic because it contravenes a limitation imposed by the maxim that supports the doctrine of parliamentary supremacy.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 1 , March 2015 , pp. 96 - 113
Copyright
Copyright © Society of Legal Scholars 2015

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Footnotes

*

This paper was prompted by a discussion with Professor N Naffine. I would like to thank Dr F Donson and the reviewer for their helpful feedback.

References

1. [2013] EWCA Civ 961 [hereinafter Nicklinson].

2. This case involved three appellants: Tony Nicklinson, deceased, represented by his wife, Paul Lamb and AM, known as Martin. Nicklinson died on 22 August 2012, having refused to eat since the High Court's rejection of his case the week prior: R (Nicklinson) v Ministry for Justice [2012] EWHC 2381 [hereinafter Nicklinson (HC)].

3. [2009] UKHL 45 [hereinafter Purdy]. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide [hereinafter Policy] was issued in February 2010 and is available at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed 21 August 2013).

4. Nicklinson, above n 1, at [115] et seq.

5. This point has been touched on in a number of the articles that have considered the Purdy case but it has not been explored in any great detail. However, in those articles that do mention the maxim, there seems to be an acceptance that motive is not properly to be considered within the criminal law. See Biggs, H ‘Legitimate compassion or compassionate legitimation? Reflections on the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide ’ (2011) 19(1) Fem Legal Stud 83 at 90. Biggs, however, acknowledges the role of motive in sentencing. Ibid, at 86. Heywood notes that the ‘introduction of motive as a factor to be considered in assisted suicide is novel’ on the basis of the irrelevance claim:CrossRefGoogle Scholar Heywood, R ‘The Dpp's prosecutorial policy on assisted suicide’ (2010) 21 (3) King's L J 425 at 439–440.CrossRefGoogle Scholar See also Biggs, ibid, at 86, 87, and Mullock, A ‘Overlooking the criminally compassionate: what are the implications of prosecutorial policy on encouraging and assisting suicide?’ (2010) 18(4) Med L Rev 442 at 455. However, Mullock notes that the introduction of motive in this context is not entirely ‘novel’, citing the utilisation of the doctrine of double effect in cases where doctors prescribe potentially lethal doses of pain medication:CrossRefGoogle ScholarPubMed ibid, at 456.

6. See further section 2 below.

7. Purdy, above n 3, at [31].

8. CPS The Code for Crown Prosecutors (January 2013), available at http://cps.gov.uk/publications/code_for_crown_prosecutors/ (accessed 21 August 2013).

9. Purdy, above n 3, at [48].

10. DPP Decision on Prosecution – the Death by Suicide of Daniel James (9 December 2008), quoted in Purdy, ibid, at [49]. Daniel James was paralysed while training for rugby. After he made three unsuccessful suicide attempts, his parents reluctantly helped him to travel to Switzerland. He was 23 years old when he died.

11. Purdy, ibid, at [104].

12. Phillips L merely said that he agreed with the other four judgments on the points of shared commonality. Purdy, ibid, at [1]. His judgment focused on whether assisting someone to travel to another jurisdiction falls within the remit of the 1961 Act. He came to some provisional conclusions, but noted that it would be better to wait to come to a final conclusion when argued specifically before the House. Ibid, at [2].

13. Ibid, at [27].

14. Ibid, at [56].

15. Ibid, at [30].

16. Ibid, at [30]. The James case was also referenced by Baroness Hale (at [59]) and Lord Brown (at [81]).

17. Ibid, at [81].

18. Ibid, at [64].

19. Ibid, at [59].

20. CPS Interim Policy for Prosecutors in Respect of Cases of Assisted Suicide (February 2010), available at http://www.cps.gov.uk/consultations/as_policy.html (accessed 21 August 2013).

21. Policy, above n 3, at [2.10], [6.17].

22. Ibid, at [5], [6].

23. Ibid, at [38].

24. Nicklinson, above n 1, at [129]. See also Commission on Assisted Dying The Current Legal Status of Assisted Dying is Inadequate and Incoherent (Demos: London, 2012) p 285 Google Scholar [hereinafter Falconer Commission]. The Report is available at http://www.demos.co.uk/publications/thecommissiononassisteddying (accessed 21 August 2013).

25. Nicklinson, above n 1, at [129]–[130].

26. Ibid, at [10].

27. Ibid, at [140], per Dyson LMR, Elias L.

28. Ibid, at [144].

29. The Falconer Commission was not set up by Parliament. Instead, two private individuals approached Demos, an independent think tank, and offered funding for an evaluation of the current legal position on assisted suicide and voluntary euthanasia, an exploration of professional and public attitudes to these matters, and consideration of what a system of legalised assisted dying might look like in England and Wales. The Commission was chaired by Falconer L. Falconer Commission, above n 24, pp 37–38. This quote does not appear in the Report; it is provided in Nicklinson, above n 1, at [125].

30. Purdy, above n 3, at [26] (per Hope L), [83] (per Brown L), [106] (per Neuberger L).

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35. Factor 1 against prosecution and factor 1 in favour of prosecution.

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39. Ibid, at [57], [58], [66], [68].

40. Finnis, above n 32, at 608.

41. The Purdy judgments were delivered 3 weeks after Lord Falconer's amendment was rejected. Nicklinson (HC), above n 2, at [48].

42. I will return to this point in the next section.

43. Mullock, above n 5, at 469.

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45. Falconer Commission, above n 24, p 285.

46. Ibid.

47. Nicklinson, above n 1, at [169].

48. Ibid, at [126].

49. Ibid, at [145].

50. Policy, above n 3, at [5].

51. Biggs, above n 5, p 87.

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56. 542 Official Report HC, No 287 Col 1380 (27 March 2012), quoted in Nicklinson (HC), above n 2, at [136].

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58. Nicklinson (HC), above n 2, at [5]. The Court of Appeal merely acknowledged that in practice, class 1 helpers seemed to be immune. Nicklinson, above n 1, at [129].

59. (2002) 35 EHRR 1 [hereinafter Pretty].

60. Purdy, above n 3, at [74] [emphasis in original]. See to Baroness Hale at [63]–[64].

61. Nicklinson, above n 1, at [99].

62. Nobles and Schiff, above n 37, at n 17. They, however, go further than this in their article, believing that the law has been changed by the guidelines: ‘it is difficult to understand offence specific restrictions as anything other than a change in the law’. Ibid, p 303.

63. Finnis, above n 32, p 612.

64. Ibid, pp 612–613.

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67. Ibid, at [73].

68. R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 at [69].

69. Heywood, above n 5, at 439.

70. Ibid, at 439.

71. See above n 35 and accompanying text.

72. [2001] QB 667 [hereinafter Adimi].

73. [1998] INLR 570, p 583, quoted in Adimi, ibid at 686.

74. Purdy, above n 3, at [41].

75. Nicklinson, above n 1, at [138].

76. Ibid, at [182].

77. Finnis, above n 32, and accompanying text. See also Greasley, above n 31.

78. Nicklinson, above n 1, at [179], per Judge LCJ.

79. See above n 45 and accompanying text.

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92. Hessick, above n 80, at 98. This focus on the accused's purpose is one of the reasons why an accused whose use of force was illegitimate because s/he was mistaken as to the facts can still avail of the defence.

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94. Hessick proposes a detailed sentencing policy that takes the defendant's aggravating or mitigating motive into account; Hessick, above n 90. See also Gardner, above n 84.

95. Hessick, ibid, pp 109–110. Hessick uses the example of mercy killing.

96. See above nn 51 and 52 and accompanying text.

97. Hessick, above n 90 at 110 at n 96. He was acquitted seven times before finally being convicted in 1999.

98. Biggs, above n 5, at 86.

99. Dignity in Dying ‘Lord Falconer tables an amendment to update the law on assisted dying abroad’ (4 June 2009), available at http://www.dignityindying.org.uk/news/general/n165-lord-falconer-tables-an-amendment-to-update-the-law-on-assisted-dying-abroad.html (accessed 21 August 2013).

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104. Ibid, at [179].

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106. Ibid, p 1340.

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116. (1874) 2 L.R.-Cr. Cas. Res. 119.

117. 11 Ir. R.-C.L. 8 (Cr. Cas. Res. 1877).

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