For those of us who have been calling for a full review of the elements of s2(1) of the 1961 Suicide Act* the 25th February 2010 was meant to be a watershed day and the start of a new national moral conscience with regards to assisted suicide within England and Wales, however it may be that this day will go down in history as the day which put the final nail in the coffin of any potential Euthanasia Act.  When Keir Starmer** announced the Crown Prosecution Service’s (CPS) policy Mr Starmer was quick to defend the policy against claims he was changing the law by stating that “no doubt some will say I am changing the law.  But they are wrong.  Encouraging or assisting a suicide is a criminal offence, carrying a maximum sentence of 14 years imprisonment.”   Despite both Debbie Purdy and Terry Pratchett both backing the new guidelines, it is apparent that the policy published by the CPS differs significantly from the draft interim guidelines published in September 2009.

It was widely anticipated that the final policy would mirror that of the interim policy with eight public interest factors which may influence public policy. In a dramatic deviation from this the policy of February 25th has finally listed sixteen individual public interest factor which may lead to a prosecution and a mere six public interest factors which may mitigate a criminal investigation, these are.

• The victim had reached a voluntary, clear, settled and informed decision to commit suicide.
• The suspect was wholly motivated by compassion.
• The actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance.
• The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
• The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
• The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

It is this widening of the prosecution factors and the erosion of the mitigating factors which appear to have signaled the end of any slim chances of having this debated in the palace of Westminster no matter which political persuasion takes power later in spring 2010.  It should be questioned why Mr Starmer no longer considers a “victim having a terminal illness, or a severe incurable physical disability or even a severe degenerative physical condition where there was no chance of recovery”  as cases of mitigation against prosecution, thus closing the door on any thoughts of supporting “mercy killings” for which the accused undertakes the physical act of ending a life by their own actions.  Whilst I accept that there may be a significant amount of ethical debate concerning the assisted or encouraged suicide of an individual with an incurable physical disability as in the case of Daniel James, but to rule out factors such as a severe degenerative physical condition with no possibility of recovery appears to go against all arguments put forward by Debbie Purdy and others. As a result, I believe, this will potentially serve to undermine the whole policy as this is at the core and the raison d’être of the original decision to hold this review of the interpretation of the current legal position and provide policy guidance to both the prosecutors and individuals who may be considering on embarking of a final trip to dignitas or a similar facility.

Whilst the 6 “defences” listed above should provide some clarity for both prosecutors and possibly some solace for those wishing to control their own end of life destiny, there is still a huge grey area as to the public interest factor of pursuing prosecutions against those who assist their family members and close friends through the process of taking their own life. Allied to this is a fear is that there will one day be a strict legal interpretation of s2(1) of the Suicide Act and the Sixteen public interest factors which may support or under pin a vexatious prosecution which is ultimately not in the public interest other than to prevent a “flood gates” type situation.  This said though, the DPP has pledged that the CPS would “look at each case on its merits.”

Those who thought that this policy would change the law by the backdoor were extremely misguided and have been left rather disappointed, the only way in which the law can be changed through the will of Parliament and as debates and news stories have shown that those engaged in the law making process have little or no desire to even debate this issue let alone actually consider a fundamental change in the ethical and legal position within England and Wales with regards to assisted suicide on any level.

Footnotes:

* Section 2(1) states  “A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”

** Keir Starmer QC is the current Director of Public Prosecutions (DPP)

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	From the Suicide Act to The Suicide Act