Comment on Andrew Sanders 'The CPS, Policy-Making and Assisted Dying: Towards a 'Freedom' Approach'

Citation

Duff RA (2018) Comment on Andrew Sanders 'The CPS, Policy-Making and Assisted Dying: Towards a 'Freedom' Approach'. In: Child JJ & Duff RA (eds.) Criminal Law Reform Now: Proposals & Critiques. London: Hart Publishing, pp. 155-163. https://www.bloomsburyprofessional.com/uk/criminal-law-reform-now-9781509916771/

Abstract
First paragraph: As Andrew Sanders makes depressingly clear, those who are considering whether to ask another for help in ending their lives, or whether to respond to such requests by providing such help, face a still uncertain, and unsatisfactory, legal position. If they provide assistance to another’s suicide, their conduct satisfies the definition of a criminal offence—an offence definition that allows no room for a defence based on, for instance, the earnestness and rationality of the request to which they respond; if what they do amounts to causing the requester’s death, their conduct satisfies the definition of criminal homicide. Someone seeking such assistance might think that the law that criminalises it violates the ‘right to respect for … private and family life’ declared in Article 8(1) of the European Convention on Human Rights (ECHR): the ECHR has held that ‘the right of an individual to decide how and when to end his life … is one aspect of the right to respect for private life’, and English courts have accepted that the formal criminalisation of assisting suicide ‘represents an interference with’ that right. But the courts will not help such a person by declaring that law to be incompatible with the ECHR (or with the English Human Rights Act 1998): for Article 8(2) of the ECHR allows interference with that right if it ‘is necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others’; and the courts have held that such purposes as ‘protection of the weak and vulnerable’, and of the moral value of ‘the sanctity of life’, can thus make such interference legitimate. Someone seeking help, especially if that help would involve killing them rather than helping them to kill themselves (which is not to say that that is a sharp distinction), can thus look for no support from the law; any assistance she can find will need to be, to put it mildly, discreet, from someone willing to commit a crime and to face the prospect of prosecution. If, however, the assistance is relatively minor, and is provided out of compassion by a friend or loved one (rather than by a medical professional), she and her assister might find reassurance in the ‘guidelines’ issued by the Director of Public Prosecutions, as required by the Law Lords’ decision in Purdy: for if the situation, and the help provided, fit enough of the ‘factors tending against prosecution’, and none or few enough of those ‘tending in favour of prosecution’, they can expect that the DPP will decide that a prosecution is not ‘in the public interest’.

• Accepted manuscript