The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I, too, am grateful to the noble Baroness, Lady Jay, for bringing this immensely important matter before your Lordships’ House.
It is inevitable that any debate on prosecution policy—which is essentially the subject of the debate—in this sensitive area will lead to discussion of the law itself. This evening’s debate has been no exception. Whatever view you take of the law, the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide has brought clarity to the practical operation of the existing law and has generally been welcomed. But it is clear that views on the desirability of legislative change remain deeply divided, as is apparent from this evening’s debate.
Encouraging or assisting suicide remains a criminal offence. The DPP’s assisted suicide policy does not seek to change the law—and cannot do so as that is clearly a change that only Parliament can make. Nor does the policy provide prospective blanket immunity from prosecution—a point made by the noble Lord, Lord Alton—as that is also beyond the powers of the DPP. The policy simply provides guidance to prosecutors on how to apply the law in force. I remind the House of the Government’s view—one expressed by others standing at the Dispatch Box in the past few years—that any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience. In amending the Suicide Act by Section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide.
Of course, a number of noble Lords have mentioned the Assisted Dying Bill introduced by the noble and learned Lord, Lord Falconer of Thoroton, in May 2013. That seeks to legalise in England and Wales assisted suicide for terminally ill mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading. As things stand, however, no date has been set for Second Reading of the Bill.
As for the CPS, noble Lords will know that its primary role is to prosecute cases investigated by the police in England and Wales and to advise the police in serious or complex cases. As was helpfully described by the noble Lord, Lord Macdonald of River Glaven, the Director of Public Prosecutions has a statutory duty to issue a Code for Crown Prosecutors. The code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions and sets out a two-stage test to be applied in all cases. First, is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, is it in the public interest to proceed with a prosecution? It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the test. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution since—as the noble Lord, Lord Macdonald, explained—the public interest must always be considered.
In addition, the DPP publishes guidance to prosecutors on particular types of cases. These must be read in conjunction with the code. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of those documents. The guidance is intended to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedure and any specific evidential and public interest factors to be taken into account. The DPP’s assisted suicide policy was published in its present form in February 2010. As the House knows, that followed the judgment of the House of Lords in the case of Debbie Purdy and a public consultation on an interim policy to which there were 4,700 responses. The circumstances in which the House of Lords in its last case came to its decision were touched on briefly by the noble and learned Lord, Lord Brown.
At the time of its publication, and indeed since, the final policy received broad approval. It is generally acknowledged to be a sensible balancing of the various important considerations that need to be taken into account. It sets out factors that may be relevant when deciding whether a prosecution for assisted suicide is in the public interest, including questions of mental capacity—a matter raised by the noble Baroness—in addition to those already outlined in the code. However, deciding on the public interest is not simply a matter of totting up the factors for or against prosecution and seeing which side has the greater number. Each case is considered on its own particular facts and circumstances. The assisted suicide policy is very clear on that. The prosecutor should make an evaluation in terms of the weight to be apportioned to those factors before deciding whether a prosecution will be in the public interest.
Among the public interest factors tending against prosecution are that,
“the victim had reached a voluntary, clear, settled and informed decision to commit suicide”,
and that the suspect was “wholly motivated by compassion”. This has been interpreted by some as meaning that the CPS will not prosecute those who help terminally ill relatives to die. That is not the case. As the policy makes clear, it does not in any way decriminalise the offence of encouraging or assisting suicide or give an assurance that any person or class of persons will be immune from prosecution.
One of the public interest factors tending in favour of prosecution is that,
“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.
This has been said by some to cause considerable difficulties for healthcare professionals because it is not clear what constitutes assistance. During the course of this debate, we heard several contributions from doctors. I have to say that, listening to the debate, I did not understand the noble Baronesses, Lady Finlay or Lady Hollins, to be suggesting that the matter of dying was not discussed. Indeed, I thought it was regularly discussed; the question was how you approached it.
The issue has given rise to a case, AM v DPP. The Court of Appeal, by a majority decision, including a dissenting judgment from the Lord Chief Justice, indicated that there might need to be some clarification of the policy, and the weight that the policy gives to the fact that a helper was acting in his capacity as a healthcare professional and the victim was in his care. The appeal was heard in December, and we await the Supreme Court’s judgment. I understand that it is likely to arrive in the next two or three weeks, although I cannot be emphatic about that.
My Lords, in exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. Indeed the exercise of prosecutorial discretion applies to all criminal offences and long pre-dates the 1961 Act. The assisted suicide policy as a public document has clarified that process by informing the wider public how such decisions are made.
Noble Lords might want to know something about the statistics. Records show that from 1 April 2009 to 13 February 2014, 91 cases have been referred to the CPS by the police recorded as assisted suicide or euthanasia. Of those 91 cases, 65 were not proceeded with by the CPS, 13 were withdrawn by the police and there are currently eight ongoing cases. One case of attempted assisted suicide was successfully prosecuted in October 2013. The facts of the matter would not trouble anyone, whichever side of the argument they were on. It involved someone with lower mental capacity. Four cases were referred onwards for prosecution for murder or serious assault.
In exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. The assisted suicide policy is a public document, which has provided some clarification for the process by informing the wider public how decisions are made.
The DPP’s guidance recognises that assisting suicide is a criminal offence. It clarifies how the discretion is exercised. Some would say that the deterrent effect of the present law combined with the compassionate exercise of prosecutorial discretion on a case by case basis, is a sensible balance in this very sensitive area. However, I freely acknowledge that strong views are expressed around the House and in the country about this matter. The fact that, looking back over Hansard, a number of contributors to tonight’s debate have expressed similar, although not identical, views before is in my view a strength. These matters do not disappear; they recur and will continue to do so. However, this debate, for which I thank all the contributors, has made a significant contribution to an issue which is difficult to resolve. Unfortunately, I cannot give any further guidance than what has been given by the Government before.