10. Question 9: issues identified
10.1 Question 9 asked respondents to provide any additional comments or further information that they wished as part of the consultation exercise. A significant majority of respondents took the opportunity to do so, and the CPS took into account all those responses that it received, in addition to the pro-forma questionnaires, in completing the analysis of this question.
10.2 Where possible and appropriate, the CPS has categorised answers provided to Question 9 and included them in its analysis of Questions 1 to 8. So, if the actual answer provided as part of Question 9 could properly have been provided to any Question from 1 to 8, it was included there. This ensured that the substance of what respondents were saying was properly considered alongside other similar comments, rather than relying rigidly on the way in which the questionnaire had been constructed and requiring them to be considered here under Question 9 simply because that is where respondents chose to place them.
10.3 This was possible for a number of comments provided; the remaining answers to Question 9 have been categorised as shown in the table below.
10.4 In addition, the CPS received 532 pieces of correspondence in which individuals expressed general views about the issue of assisted suicide but in which they did not identify any particular factors, either in favour of or against prosecution. The principal issue in each of these pieces of correspondence was identified and they have also been included in table 11.
10.5 Although many of the issues shown below relate to earlier questions in the consultation document, the comments did not provide a specific answer to any question asked. They have therefore been included here.
Table 11: issues identified in response to Question 9
| Issues identified in response to Question 9 | No. | % of all relevant respondents |
|---|---|---|
| The DPP has neither the authority nor the right to change the law; as such these matters should come within legislation passed by Parliament. | 1,078 | 23% |
| Assisting suicide is a criminal offence. The guidelines should make it clear that there will always be a presumption in favour of prosecuting people who assist suicide, unless there are clear and compelling reasons to the contrary; each case should be taken on its merits, as at present. | 910 | 19% |
| Assisted suicide is illegal and therefore the CPS should prosecute every case, and let a jury decide on the evidence presented/the law should not be changed. | 853 | 18% |
| All life is sacred and we must preserve the sanctity of life. | 447 | 9% |
| The guidelines may encourage people to think they are immune from prosecution. | 385 | 8% |
| Comments regarding the consultation document and/or consultation process overall. | 375 | 8% |
| Every person should have the right to make decisions about their own life. A change in the law is required; no cases involving assisted suicide should be prosecuted. | 339 | 7% |
| Discussion of health-related factors of the victim: i.e. terminal illness, degenerative condition, severe disability etc. | 327 | 7% |
| Details on personal and/or professional background and experience provided. | 264 | 6% |
Commentary
10.6 The main themes identified in answer to Question 9 were that: the DPP has neither the authority nor the right to change the law, and as such these matters should come within legislation passed by Parliament (1,078 respondents); the Interim Policy should make it clear that there will always be a presumption in favour of prosecuting people who assist suicide, unless there are clear and compelling reasons to the contrary (910 respondents); and either assisted suicide is a criminal offence and therefore the CPS should prosecute every case, and let a jury decide on the evidence presented, or that the law should not be changed (853 respondents).
10.7 The CPS also considered the terms of EDM 302 in this section and a number of respondents referred the CPS to the fact that they supported its terms. As stated in the Introduction to this report, one of the clauses of the EDM calls for the Interim Policy to be withdrawn on the basis that it overrides the will of Parliament.
10.8 A number of respondents commented that they considered the questionnaire to be an over-simplification of complex issues that did not lend themselves to simple "Yes" or "No" answers. They were concerned in part that it could be misread as a "tick box" approach which might allow would-be suspects simply to consider the factors on both sides of the public interest and assess how best to avoid prosecution. This was also commented on in EDM 302.
CPS response
10.9 Many respondents focused on the fact that the law should not be changed and/or that the DPP was seeking to change the law. As stated in both the Interim Policy and the Final Policy, the publication of the policy for prosecutors in respect of cases of encouraging or assisting suicide does nothing to change the law. That is, and can only be, a matter for Parliament. Neither the DPP nor the CPS has the power to change the law.
10.10 Further, it is important to place the offence of encouraging or assisting suicide in the context of the criminal law generally. The offence of encouraging or assisting suicide is no different from any other criminal offence created by Parliament.
10.11 In respect of every criminal offence, the DPP has a discretion whether or not to prosecute. That discretion has been recognised for generations as Sir Hartley Shawcross, the then Attorney General, made perfectly clear on the floor of the House of Commons in 1951. Then, he stated that: "[i]t has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution". He added that there should be a prosecution: "wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest" (House of Commons Debates, Volume 483, 29 January 1951). This statement on the public interest and the discretion of the Attorney General and the DPP to decide whether or not a prosecution is required in the public interest has been supported by Attorneys General ever since.
10.12 The discretion of the DPP to decide whether or not to prosecute cases of encouraging or assisting suicide is confirmed by Parliament's decision in 1961 to allow such a prosecution to take place only with the consent of the DPP.
10.13 Accordingly, it would be a breach of the duty to consider each case on its own facts and on its own merits to conclude - as a statement of policy - that every case of encouraging or assisting suicide in which there is sufficient evidence to support a prosecution must be prosecuted. Such a statement of policy would be in breach of the Code - which prosecutors must apply when considering each case of encouraging or assisting suicide - and subject to judicial intervention.
10.14 Therefore, whilst the CPS understands the concerns that have been expressed, it is firmly of the view that the requirement to exercise independent judgment in each case and to decide whether a prosecution is required in the public interest means that it is not automatic that every case of encouraging or assisting suicide where there is sufficient evidence will be prosecuted.
10.15 The DPP further retains his discretion whether to prosecute such cases based on the need for him to give his consent to all prosecutions under section 2 of the Suicide Act 1961. Decisions on consent in respect of cases of encouraging or assisting suicide are taken on the basis of the evidential and public interest factors set out in the Code and in the Final Policy. The CPS notes the views of those respondents who wished that every case of encouraging or assisting suicide be prosecuted where there is sufficient evidence; however, each case will continue to be judged by senior and highly experienced lawyers on its own facts and on its own merits.
10.16 With regard to the comments received about the potential misuse of this policy by adopting a "tick box" approach, the CPS draws attention to the fact that this was specifically addressed in paragraphs 15 and 16 of the Interim Policy. There, it is clear that the consideration of public interest factors is not to be treated as a numerical exercise. These paragraphs are repeated in the Final Policy at paragraphs 39 and 40.
10.17 In order to ensure that all those who apply the Final Policy do so consistently, and to help members of the public, the decision-making process that is set out in the Code relating to the exercise of discretion in the public interest is also set out in the Final Policy in respect of cases of encouraging and assisting suicide. The relevant text appears at paragraphs 37 and 38.
Next: Annex A
