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On 25 February 2010, following a public consultation on draft guidelines, the Director of Public Prosecutions (DPP) published his ‘Prosecuting Policy on Cases of Encouraging or Assisting Suicide'. The Policy has subsequently been endorsed by both MPs and Peers.
Why is the policy significant?
The policy is the first time the public interest factors for and against prosecution have been formally clarified. The policy distinguishes between compassionate and malicious assistance and states that the former is, generally, unlikely to be prosecuted. This is the first time a public policy document has endorsed the principle that prosecution of compassionate assistance is not in the public interest. However, whilst the policy provides clarity on the application of the law it does not change the law, or provide immunity from prosecution. Assisting a suicide is still a crime, and cases of 'mercy killing', where a person directly ends the life of another person at their request, will still be prosecuted as murder or manslaughter.
What does the policy say?
The Policy lists 16 public interest factors in favour of prosecution and six against prosecution. Together these indicate that compassionate, reluctant assistance at the ‘victim’s’ clear, settled and valid request is unlikely to be prosecuted. However, assisting a person who is under 18, or who does not have mental capacity is likely to be prosecuted, as is assisting someone for gain or in a professional capacity. The health or mobility of the victim is not directly taken into account, neither is the person’s relationship to the person assisted. These factors were included in a draft version of the policy and subsequently removed. However, these considerations are tacitly taken into account in that prosecution is more likely where the assisted person was physically able to undertake the act alone and where the assister helped or encouraged someone they did not know.
A more detailed analysis of the prosecuting policy can be found in this briefing.
Where does the Policy apply?
The Policy covers actions carried out in England and Wales , but the suicide itself could take place in any country. The DPP in Northern Ireland has adopted the same prosecuting policy in relation to assisted suicide. The Scottish equivalent of the DPP, Lord Advocate Elish Angiolini QC, has said that similar guidance will not be issued in Scotland. There is no specific crime of 'assisted suicide' in Scotland, but people there who assist suicide may be liable for prosecution for the crime of culpable homicide.
The issue of the policy and its endorsement by Parliament mark significant steps forward for the campaign. Public policy now clearly recognises that compassionately motivated assistance is acceptable in certain circumstances. However, the current law means that the state investigates the circumstances of an assisted death after the person has died, via a police investigation and the application of the prosecuting policy of the Director of Public Prosecutions. The principle of compassionate assistance is accepted but we do not provide a safe process of assisted dying with checks and balances against abuse or coercion before someone has died. A change in the law to allow assisted dying subject to strict legal safeguards would give dying people real choice, and offer much greater protection to vulnerable people than the current law does.