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The suicide of Mr Raymond Cutkelvin - decision on prosecution

25/06/2010

Keir Starmer QC, Director of Public Prosecutions, has today said that while there is sufficient evidence to prosecute Alan Cutkelvin Rees and Dr Michael Irwin in relation to the death of Raymond Cutkelvin at a Dignitas clinic in Switzerland in February 2007, such a prosecution would not be in the public interest and no further action should be taken against them.

Introduction

1. Mr Raymond Cutkelvin committed suicide at a Dignitas clinic in Switzerland on 28 February 2007. He was accompanied by his partner of 28 years Mr Alan Cutkelvin Rees, a relative, a friend and Dr Michael Irwin, a former GP and a member of groups committed to changing the law on assisted suicide. The Metropolitan Police Service has investigated whether Mr Rees and Dr Irwin committed offences under section 2 of the Suicide Act 1961.

2. I have reviewed the available evidence in accordance with the Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, issued by me in February 2010.

3. I have concluded that there is sufficient evidence to prosecute Mr Rees and Dr Irwin for an offence of aiding and abetting Mr Cutkelvin's suicide, but that a prosecution is not required in the public interest.

4. The questions I have addressed are whether there is enough evidence to provide a realistic prospect of conviction and, if so, whether a prosecution is required in the public interest. It is not my function to make findings of fact and I have not done so. Mr Rees and Dr Irwin are entitled to be presumed innocent and that is the basis on which I have approached this case,

The material facts

5. In 2006, Mr Cutkelvin was diagnosed with pancreatic cancer. It was impossible to operate and he declined treatment. In October Mr Cutkelvin contacted Dignitas in Switzerland, explaining that he wanted control over the decision to end his life. He had discussed the situation with those close to him and they supported any decision he may make.

6. Mr Cutkelvin and Mr Rees entered into a civil partnership in November 2006. On the same day, Mr Cutkelvin made a living will indicating that he did not want his life to be sustained by artificial means.

7. In January 2007, Dignitas confirmed that one of its medical doctors had given consent to Mr Cutkelvin to access an assisted suicide at Dignitas.

8. Dignitas asked Dr Irwin to contact Mr Cutkelvin. In interview, Dr Irwin said he was asked to contact Mr Cutkelvin because he was a member of Dignitas and Mr Cutkelvin and Mr Rees were uncertain of the procedures involved in going to Dignitas and he was not well off. Dr Irwin went to see Mr Cutkelvin and Mr Rees in February 2007. Mr Cutkelvin wanted Mr Rees to accompany him to Dignitas and they had a discussion about the expenses involved.

9. Dr Irwin offered to help out with the Dignitas costs. He said in interview that Mr. Cutkelvin and Mr Rees could have paid the Dignitas fees without his help but time was pressing. He felt sorry for them and paid £1,500 from his own pocket directly to Dignitas; which was about a third of the cost involved.

10. That payment has been confirmed by investigation. The rest of the costs were paid from the joint funds of Mr Cutkelvin and Mr Rees.

11. Mr Cutkelvin was asked to attend Dignitas on 27 February 2007 and on that day Mr Cutkelvin, Mr Rees, the friend and the relative set off to the airport to travel to Switzerland and met Dr Irwin at the airport.

12. Once at Dignitas, Mr Cutkelvin saw a doctor who explained the procedures to him. He then went out for the evening. The next day, Mr Cutkelvin was asked several times if he wanted to go through with the procedure. A witness confirmed that Mr Cutkelvin "answered every single question with a very determined 'yes'... It was clearly Raymond's choice to die." Mr Cutkelvin was then given medication, which he took, and died a short while later. He was 58 years old.

13. Mr Cutkelvin was not a wealthy man; nobody benefited financially from his death.

The Investigation

14. Mr Rees made several attempts to publicise Mr Cutkelvin's death, but there was little interest and no criminal complaint. It was not until an article appeared in the London Evening Standard more than two years later that a police investigation was opened.

15. A large number of documents have been obtained by the police, including Mr Cutkelvin's medical notes; his correspondence with Dignitas and other Dignitas records. Mr Rees and Dr Irwin have been interviewed and a report has been prepared by the police.

16. Having reviewed all the available material, I am satisfied that there has been a full and thorough investigation and that I have enough evidence before me to reach a fully informed decision about the evidential and public interest stages of the Full Code Test. I am also satisfied that the investigative requirements of Article 2 of the European Convention on Human Rights have been met.

The evidential stage of the Full Code Test

17. Because Mr Cutkelvin died on 28 February 2007 the former offence of aiding, abetting, counselling or procuring the suicide of another, contrary to the then section 2 of the Suicide Act 1961, applies. For the evidential stage of the Full Code Test to be satisfied, the prosecution must prove that:

(a) the victim committed or attempted to commit suicide; and

(b) the suspect aided, abetted, counselled or procured the suicide or the attempt.

18. The fact of the suicide can be established by Mr Cutkelvin's clear communications to others that he intended to travel to Dignitas to commit suicide, his correspondence with Dignitas, his travel to and attendance at Dignitas on 27 and 28 February 2007, and the accounts given of his death. I consider that a jury would be able to infer the manner and cause of Mr Cutkelvin's death from the circumstantial evidence in this case.

19. The focus in this case is on aiding, the natural meaning of which is to give help, support or assistance to. The mental element to be proved is an intention to do the acts which the suspect knew to be capable of helping, supporting or assisting suicide.

20. The critical question is whether Mr Rees or Dr Irwin did help, support or assist Mr Cutkelvin to commit suicide and, if they did so, did they know that their acts were capable of doing so?

Mr Rees

21. There is sufficient evidence to establish that:

(a) Mr Rees discussed Mr Cutkelvin's decision to commit suicide with him and was supportive of him;

(b) Mr Rees collated the necessary information to send to Dignitas

(c) Mr Rees and Mr Cutkelvin used their joint money to pay towards the Dignitas costs; and

(d) Mr Rees accompanied Mr Cutkelvin to Dignitas.

22. Acts that took place out of the jurisdiction, in Switzerland, are not relevant to the application of the evidential stage of the Full Code Test. Therefore, references to Mr Rees' act of accompanying Mr Cutkelvin to Dignitas are limited to his accompanying him to the airport and travelling with him on the plane. There is no evidence that Mr Cutkelvin needed physical support or assistance either to get to the airport or board the plane.

23. Acts capable of helping, supporting or assisting suicide vary from the remote (eg assisting someone to get to the airport) to the very direct (eg actual participation in the act of suicide itself). Mr Rees' acts are towards the more remote end of the spectrum.

24. Nonetheless I have decided that the acts of Mr Rees, taken together, satisfy the factual element of the offence.

25. I have also decided that the mental element is made out in this case. The only relevant consideration is whether or not Mr Rees intended the acts he undertook and knew that they aided Mr Cutkelvin to commit suicide. He clearly did.

26. I have decided that there is sufficient evidence to provide a realistic prospect of conviction against Mr Rees under section 2 of the Suicide Act 1961.

27. I have not taken into account Mr Rees' acts of discussing Mr Cutkelvin's decision to commit suicide with him and being supportive of him. Acts such as these would rarely, if ever, be capable (without evidence of active encouragement) of amounting to acts of aiding or abetting suicide and they add little to the acts of aiding already identified above.

Dr Irwin

28. There is sufficient evidence to show that:

(a) Dr Irwin visited Mr Cutkelvin to discuss the procedures involved in going to Dignitas with him and Mr Rees;

(b) he contributed towards the costs; and

(c) he accompanied Mr Cutkelvin to Dignitas.

29. As with Mr Rees, acts that took place out of the jurisdiction are not relevant to the application of the evidential stage of the Full Code Test.

30. I have decided that the acts above, taken together, satisfy the factual element of the offence.

31. I have also decided that the mental element is made out in this case. The only relevant consideration is whether or not Dr Irwin intended the acts he undertook and knew that they aided Mr Cutkelvin to commit suicide. He clearly did.

32. Against that background, I have decided that there is sufficient evidence to provide a realistic prospect of conviction against Dr Irwin under section 2 of the Suicide Act 1961.

The public interest stage of the Full Code Test

33. I go on to consider whether a prosecution is required in the public interest. In doing so, I have applied the Full Code Test as set out in the Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, issued by me in February 2010.

34. The offence of aiding or abetting suicide carries a maximum penalty of 14 years' imprisonment, reflecting the seriousness of the offence. Where there is sufficient evidence to justify a charge, a prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour.

Mr Rees

35. I have concluded that none of the public interest factors tending in favour of prosecution apply in Mr Rees' case. Mr Rees did not encourage Mr Cutkelvin to commit suicide. He acted throughout as a supportive and loving partner to him.

36. I have concluded that the following public interest factors tending against prosecution (as set out in the Policy) apply:

(a) Mr Cutkelvin had reached a voluntary, clear, settled and informed wish to commit suicide (factor 45.1);

(b) Mr Rees was wholly motivated by compassion (factor 45.2);

(c) the actions of Mr Rees were reluctant encouragement or assistance in the face of a determined wish by Mr Cutkelvin to commit suicide (factor 45.5).

37. I have also considered the factors tending for and against prosecution set out in the Code for Crown Prosecutors. In my view, the most relevant is in paragraph 4.17(a), namely, that any penalty imposed on Mr Rees if he were to be prosecuted is likely to be nominal; an absolute discharge is highly likely on these particular facts.

38. I am sure that the public interest factors tending against prosecution in Mr Rees' case outweigh those tending in favour. I therefore conclude that a prosecution of Mr Rees is not required in the public interest.

Dr Irwin

39. The acts of Dr Irwin have to be seen in context. Mr Cutkelvin was a strong- minded man who had the capacity to reach an informed decision to commit suicide and did so without any pressure from Dr Irwin. He had resolved not to take up treatment, made a living will, and his plans to travel to Dignitas to commit suicide were at a very advanced stage before he met Dr Irwin. I have concluded that Mr Cutkelvin had formed a clear intention to commit suicide with Dignitas without any assistance from Dr Irwin.

40. I have concluded that the factors tending in favour of prosecution are:

(a) Dr Irwin was unknown to Mr Cutkelvin and assisted him by providing information about the Dignitas procedures (factor 43.11);

(b) Dr Irwin claims to have previously accompanied others to Dignitas and to have advised several individuals about the Dignitas procedures - these were not individuals known to Mr Cutkelvin (factor 43.12).

41. I have carefully considered the application of several other factors tending in favour of prosecution but concluded that, although they arguably apply to Dr Irwin, they should not be given very much weight. Those factors are:

Factor 43.5

(a) Mr Cutkelvin did not seek the assistance of Dr Irwin personally. It is clear that Mr Cutkelvin had contacted Dignitas several months before Dr Irwin contacted him and that Mr Cutkelvin was personally seeking the assistance of Dignitas. Dignitas asked Dr Irwin to contact Mr Cutkelvin because he and Mr Rees were uncertain of the procedures and were not well-off. It is not possible to establish on the available evidence whether Dr Irwin contacted Mr Cutkelvin first or whether Mr Cutkelvin contacted Dr Irwin.

Factor 43.6

(b) Dr Irwin is motivated by a strong belief that the law on assisted suicide is wrong and it is legitimate to assist those who wish to travel to Dignitas to commit suicide. Thus, it could be said that Dr Irwin was not wholly motivated by compassion. However, Dr Irwin felt sorry for Mr Cutkelvin and Mr Rees. He did not visit them intending to contribute towards the Dignitas costs, but, knowing that they were ready to travel but that it would take them some time to get the funds together, he had sympathy for them. I have concluded that Dr Irwin had mixed motives (ie a strong belief that the law is wrong and that his actions were legitimate mixed with personal sympathy for the situation that Mr Cutkelvin and Mr Rees found themselves in); he was not motivated by the prospect that he stood to gain in some way from Mr Cutkelvin's death.

42. I have also discounted factor 43.16. Although Dr Irwin was a member of Dignitas and was asked to contact Mr Cutkelvin in that capacity, there is no evidence that he was acting as an employee or manager of Dignitas.

43. I have concluded that the following public interest factors tending against prosecution apply:

(a) Mr Cutkelvin had reached a voluntary, clear, settled and informed decision to commit suicide (factor 45.1);

(b) Dr Irwin fully assisted the police in their enquiries, giving a detailed account of every aspect of his involvement. (factor 45.6).

44. I have also considered the factors tending for and against prosecution set out in the Code for Crown Prosecutors. The most relevant are those relating to the previous history of offending (paragraphs 4.16(p) and 4.16(s)) and the likely sentence (the factors set out in paragraph 4.16(a) and paragraph 4.17(a)). I have also considered paragraph 4.16(e) relating to premeditation, but have concluded that it carries no weight.

45. Dr Irwin has been struck off as a medical practitioner and received a caution for possessing a fatal dose of barbiturates that he intended to supply to a doctor friend. That is not only a factor tending in favour of prosecution in this case (under paragraphs 4.16(p) and 4.16(s)), it is also an aggravating factor in relation to sentencing. In addition, Dr Irwin claims to have previously accompanied others to Dignitas and to have advised several individuals about the Dignitas procedures, which is also relevant under paragraph 4.16(s) of the Code.

46. As to sentence, the most relevant aggravating factors are those already identified relating to the previous offending and past behaviour in accompanying others to Dignitas. However, there are a number of powerful mitigating factors:

(a) Dr Irwin is aged 79 and that is highly likely to influence any sentence that might be imposed on him.

(b) Mr Cutkelvin was a strong minded man who reached an informed decision to commit suicide and clearly did so without any pressure from Dr Irwin. He had resolved not to be treated and made a living will, and his plans to travel to Dignitas were at a very advanced stage before he met Dr Irwin. I do not have any doubt that Mr Cutkelvin would have committed suicide at Dignitas without any assistance from Dr Irwin;

(c) Dr Irwin was motivated (at least in part) by personal sympathy. Although Dr Irwin accompanied Mr Cutkelvin to Switzerland, he only joined him at the airport and (it seems) the support he received from Mr Rees was far more important to Mr Cutkelvin;

(d) It is now over 3 years since Mr Cutkelvin committed suicide. Although this is not a public interest factor against prosecution in its own right, it is relevant to sentence.

47. I have carefully considered the likely sentence. Other cases of assisted suicide are not particularly helpful because the facts of this case are very different to the facts of those cases. I have therefore proceeded on first principles.

48. Encouraging or Assisting Suicide is a serious offence. I have no doubt that where a court was satisfied that, for personal gain, the defendant put pressure on a vulnerable individual to commit suicide or took an active part in the suicide itself, a significant sentence would be imposed, almost certainly a custodial sentence. However, this case is far removed from those examples. Dr Irwin did not act for personal gain; did not put pressure on Mr Cutkelvin; and did not take an active part in the suicide itself; and Mr Cutkelvin was not vulnerable to pressure.

49. Focussing intensely on Dr Irwin's limited acts, his age and the overriding determination of Mr Cutkelvin to commit suicide, I have concluded that, on the very particular facts of this case, the likely penalty would be a conditional discharge (that is, a nominal penalty within the meaning of paragraph 4.17(a) of the Code for Crown Prosecutors).

50. Against that background, and applying paragraphs 39-42 of the Policy for Prosecutors in respect of cases of Encouraging or Assisting Suicide and paragraphs 4.13-14 of the Code for Crown Prosecutors, I am sure that the public interest factors tending against prosecution in Dr Irwin's case outweigh those tending in favour.

51. I therefore conclude that a prosecution of Dr Irwin is not required in the public interest.

Keir Starmer QC
Director of Public Prosecutions
25 June 2010