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Proposed changes to ‘Homicide: Murder and Manslaughter’ Guidance

Changes

The following changes to the Homicide: Murder and Manslaughter guidance are proposed:

  1. Delete from the section “Other matters” the sentence “Subject to sufficiency of evidence, a prosecution is almost certainly required, even in cases such as 'mercy killing' of a sick relative.”
  2. Insert the following section between the sections headed “Other Matters” and “Murder”:

Suicide pact cases and so called ‘mercy killings’

Public Interest

The public interest in prosecuting suicide pact cases and so called ‘mercy killing’ cases is high as the harm caused will inevitably be of the utmost seriousness.

However, it has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied. This was recognised by the House of Lords in the Purdy [2009] UKHL45 case where Lord Hope (at paragraph 44) stated that: "It has long been recognised that a prosecution does not follow automatically whenever an offence is believed to have been committed."

Accordingly, where there is sufficient evidence to justify a prosecution in a suicide pact or so called ‘mercy killing’ case, prosecutors must go on to consider whether a prosecution is required in the public interest. Prosecutors must apply the public interest factors set out in the Code for Crown Prosecutors in coming to their decision.

Suicide - Encouraging or Assisting 

Assisting or Encouraging Suicide policy guidance is separately available and applies to cases where a person commits an offence under section 2 of the Suicide Act 1961 if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide.

In cases of encouraging or assisting suicide, prosecutors must apply the public interest factors set out in the Code for Crown Prosecutors and the specific factors set out in the guidance in making their decisions. These cases must be referred to the Special Crime Division.

‘Mercy killings’ and Suicide Pacts

The act of suicide requires the victim to take his or her own life, and the offence of encouraging or assisting the suicide will only apply where the victim has taken or attempted to take their own life. Therefore, where the course of conduct goes beyond encouraging or assisting suicide, because the suspect takes or attempts to take the life of the victim (i.e. the victim does not take or attempt to take their own life, even though they may desire it or would do so if they were able to), the appropriate charge will be murder, manslaughter or attempted murder.

Where the suspect takes the life of the victim and believes they are acting wholly out of compassion for the deceased or at the request of the deceased, the case may be referred to as a so called “mercy killing”. It is not defined in statute and does not provide a defence to murder or manslaughter.

A person, acting in pursuance of a suicide pact between him and another, who kills the other or is a party to the other being killed by a third person, is guilty of manslaughter and not murder (Section 4 of the Homicide Act 1957).

Application of the Public Interest Stage to suicide pact cases and so called ‘mercy killings’

The public interest factors tending in favour of or against prosecution in cases of so called “mercy killings” and suicide pacts will be similar to those involved in assisted suicide cases, as they often arise out of similar circumstances. However, they will necessarily need to be evaluated differently, in the light of the overall criminal conduct, which is necessarily more serious.

This section sets out the relevant public interest factors that must be considered when reviewing these exceptional cases where there is evidence of a failed suicide pact or so called 'mercy killing'. This does not in any way "decriminalise" the offences of murder, manslaughter or attempted murder. Nothing in this approach can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that ends the life of another person.

It is murder or manslaughter for a person to do an act that ends the life of another, even if they do so on the basis that they are simply complying with the wishes of the other person concerned. So, for example, if a victim attempts to commit suicide but succeeds only in making him or herself unconscious, a person commits murder or manslaughter if they then do an act that causes the death of the victim, even if they believe that they are simply carrying out the victim’s express wish.

Where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest. Prosecutors must apply the public interest factors set out in the Code for Crown Prosecutors and the factors set out below in assessing the public interest.

The circumstances of the death and the state of mind of the victim are relevant in assessing the public interest factors below. Prosecutors and investigators should make sure that they pursue all reasonable lines of enquiry in order to obtain, wherever possible, independent verification of the suspect's account. If there is insufficient evidence to support the suspect’s account about the circumstances of death and the state of mind of the victim, which is relevant to a particular factor, then prosecutors should conclude that there is insufficient information to support that factor.

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. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.

These lists of public interest factors are not exhaustive. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number, and where a factor does not apply, that does not mean that its absence has the opposite effect. It is quite possible that one factor alone may outweigh several other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution is in the public interest and for those factors to be put to the court for consideration when sentence is passed.

Public Interest Factors Tending in Favour of Prosecution

A prosecution is more likely to be required if:

  1. the victim was under 18 years of age; 
  2. the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to end their life;
  3. the victim had not reached a voluntary, clear, settled and informed decision to end their life; 
  4. the victim had not clearly and unequivocally communicated their decision to end their life to the suspect; 
  5. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim; 
  6. the suspect pressured the victim or did not take reasonable steps to ensure that any other person had not pressured the victim; 
  7. the suspect has a history of violence or abuse against the victim; 
  8. the suspect was unknown to the victim; 
  9. the suspect received a financial reward for their actions; 
  10. the suspect deliberately used excessive violence or force causing unnecessary or prolonged suffering;
  11. the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care. [This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.]

Public Interest Factors Tending Against Prosecution

A prosecution is less likely to be required if:

  1. the victim had reached a voluntary, clear, settled and informed decision to end their life; 
  2. the suspect was wholly motivated by compassion; 
  3. the victim was seriously physically unwell and unable to undertake the act;
  4. the actions of the suspect may be characterised as reluctant, in the face of a determined wish on the part of the victim to end their life; 
  5. the suspect attempted to take their own life at the same time, in pursuance of a suicide pact;
  6. the suspect reported the death to the police and fully assisted them in their enquiries into the circumstances and their part in it.

Handling and Referral

Authority to charge or NFA must be given by the Chief Crown Prosecutor (personally). The Directors of Legal Services must be notified and briefed before any decision is communicated.

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