In a post on her website1, Nadine Dorries MP makes a series of contentions concerning the law on assisting suicide that I believe to be mistaken.
The first contention is that the 1961 Suicide Act clearly and unambiguously “states that those who aid, abet, counsel or procure someone else’s suicide, can be prosecuted and punished with up to 14 years in jail.”
That is true; however, section 2 (4) of the Act says that
no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.
Indeed, the case made by Purdy and the instructions to the DPP revolve around this section. As I understand it, the contention, which the Law Lords supported, was that article 8 of the European Convention on Human Rights, as Lord Neuberger of Abbotsbury said,
entitle[s] her [Purdy] to be provided with guidance from the Director as to how he proposes to exercise his discretion under section 2(4) of the 1961 Act
The second contention is that “clarification of the existing law can only mean one thing: assisting suicide is illegal and prosecutable with up to 14 years in jail.” In other words, the instruction to the DPP means that the law can only be clarified in one direction, which would increase the probability of a prosecution (and, so, limit the number of instances of people travelling to Dignitas). Again, that is simply not true. That is one possible outcome; however, on the basis of what reasons not to prosecute in these cases that the DPP (and his predecessor) has published, it seems equally likely that the public interest will not be seen to favour any tightening of the implementation of the law.
The CPS list a series of factors in the Full Code Test that will make a prosecution more or less likely. One of the points made in the ruling is that being an accessory to suicide is the only crime of aiding, abetting, counselling and encouraging where the principal is not guilty of a crime, suggesting that (at least possibly) those points may not be appropriate.
Ms Dorries, in the third contention, suggests that any deviation from more prosecutions would be the creation of new law (“Keir Starmer cannot change this law without a vote in Parliament. He can only define policy one way and that would be for the law, which has until now been quietly passed over by the authorities, to be paid due attention in each and every case”). This is simple rubbish. It seems worthwhile to quote Viscount Dilhorne, quoted by Lord Hope of Craighead in the ruling:
“In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney-General, Sir Hartley Shawcross, said: ‘It has never been the rule in this country – I hope it never will be – that criminal offences must automatically be the subject of prosecution.’ He pointed out that the Attorney-General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said:
‘… there is no greater nonsense talked about the Attorney-General’s duty than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney-General supposes it is.’
Sir Hartley Shawcross’s statement was indorsed, I think, by more than one of his successors.”
Ms Dorries’ fourth contention is that the legalisation of assisted suicide will be the first step towards state-assisted suicide. I say that it is not the first step but the same thing. If it is legalised in the UK, it will like as not be available, at least for some people, with state support. If nothing else, there will be heavy state regulation and oversight. I see no difference in the two instances other than an attempt at implying that the NHS is going to start bumping off people who have no family. Ms Dorries evidently has a low opinion of doctors if she thinks they will routinely tell people to die because they’re holding up a bed; indeed, the possibility for doctors to do that now to the relatives of someone in, say, a persistent vegetative state exists in practice through the similar device of a DNR.
The fifth contention is that “the first job of Parliament is to protect the majority and the vulnerable”. This is rot; those are two jobs which could well be, and often are, at odds with one another.
The sixth contention is that those who want to change or clarify the law on assisted suicides might be better off “to let sleeping dogs lie”.
The idea of jury nullification is not new; it would be a stone-hearted jury that convicted Omar Puente of helping his wife to die. Indeed, one of the factors in the Full Code Test against a prosecution being brought is the likelihood of a conviction. That, at best, is an unknown, particularly if any weight is given to recent polls on the subject.
Ms Dorries might do well to remember a line by Abraham Lincoln:
“The best way to get a bad law repealed is to enforce it strictly.”
I have not dealt with whether there should or should not be a change in the law; I have merely pointed out what I believe to be mistakes in Ms Dorries’ reasoning. Given her stance on abortion, her stance on assisted suicide is of no surprise. For the record, I would probably be in favour of relaxing the law on assisted suicide.
The text of R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent) is on the House of Lords website and the (very short) Suicide Act 1961 is on the OPSI website.
There is a certain irony on the last ruling by the Lords of Appeal in Ordinary in the House of Lords, thanks to the creation of the Supreme Court, is on assisted suicide.
xD.
1 – No comments or trackbacks mean it’s not a blog, just a regularly updated website.
PS – One of the pitfalls I have fallen into, blogging-wise, is not doing enough research. However, I’m not an MP and not running a campaign on this issue, unlike Ms Dorries. Indeed, the article she links to in the Daily Mail, talking about a Bill she is to propose to make it clear that a prosecution must be brought in all cases of assisting suicide, shows that many of the contentions she makes in the article on her website are flawed. I’m prepared to accept that I’m wrong on the detail, but I think I am right in saying that the situation is rather more complicated than Ms Dorries would have us believe. To the lawyers (there’s at least four) who read this blog – I appreciate corrections!
