In the Netherlands, assisted dying and voluntary euthanasia have both been legal since 2002. Euthanasia is legal in Belgium and assisted dying in Switzerland. In America, the Death with Dignity Act was passed in 1997, legalising assisted dying in the state of Oregon. Washington State followed suit in 2009, and California in 2016. Canada, in 2016, became the first Commonwealth country to legalise assisted dying. In February 2020, a law prohibiting professionally assisted dying was rejected as unconstitutional by Germany’s Federal Constitutional Court, contrasting with Spain’s Parliament which, in December 2020 voted to decriminalise euthanasia and doctor-assisted dying. In October 2020, New Zealand voted to legalise euthanasia following a referendum. The result of the referendum is binding, and the new legislation is expected to come into force in November 2021. Assisted dying is an emotionally charged issue, regularly covered by the media and has received extensive treatment in UK Courts and Parliament.

Assisting someone to die is illegal under English law, although suicide itself is not a crime. The ethical debate surrounding assisted dying and whether or not a terminally ill person with capacity should have the right to decide how and when to end their life is beyond the scope of this article. Instead, we set out the current law.

Note that there is a difference between “euthanasia” (the act of deliberately ending a life in order to relieve suffering) and “assisted dying”, which is the act of deliberately assisting another to kill themselves.

The legislation refers to “assisted suicide”; we will therefore use that term below when discussing the law.

The history behind current legislation

There have been several high-profile cases concerning assisted suicide, particularly in relation to profoundly disabled and/or terminally ill people.

R (on the application of Purdy) v the Director of Public Prosecutions [2009] UKHL 44.

In 2009, Debbie Purdy, an MS sufferer, argued that her partner should not face the risk of prosecution if he assisted her to take her life. The House of Lords (which has been replaced by the Supreme Court) stepped back from legalising assisted suicide but held that there was a lack of certainty in the law so those assisting someone to take their life did not know whether they would be prosecuted or not. The Court ordered the Director of Public Prosecutions (DPP) to produce guidance on what makes a prosecution more or less likely and to clarify their position with regards to the relevant factors for and against prosecution in cases of encouraging or assisting suicide. The resulting policy document sets out the public interest factors that the Crown Prosecution Service (CPS) would consider when deciding whether or not to institute proceedings, and can be found here.

As in every potential prosecution, the CPS must first consider whether there is sufficient evidence to justify a prosecution. If there is, prosecutors must apply the general public interest factors set out in the Code for Crown Prosecutors along with the specific factors set out in the DPP’s policy. A prosecution will only take place if the prosecutor is sure that the public interest factors tending in favour of prosecution outweigh those tending against.

As per the DPP’s policy, 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 commit suicide
3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide
4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect
5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative
6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim
7. The suspect pressured the victim to commit suicide
8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide
9. The suspect had a history of violence or abuse against the victim
10. The victim was physically able to undertake the act that constituted the assistance him or herself
11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication
12. The suspect gave encouragement or assistance to more than one victim who were not known to each other
13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance
14. 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
15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present
16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide

On the other hand, a prosecution is less likely to take place if:

1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide
2. The suspect was wholly motivated by compassion
3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance
4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide
5. 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
6. 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

Note that this list of factors is not exhaustive, and each case will be considered on its own facts and merits.

R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38

The claimants in this case sought a declaration from the Supreme Court that the current law on assisted suicide was incompatible with their right to a private life, as enshrined in law by Article 8 of the European Convention on Human Rights (ECHR). The Supreme Court decided against making such a declaration by a majority of seven to two. The majority found that the question of the current law’s compatibility with the ECHR involves a consideration of issues which Parliament would be inherently better qualified than the courts to assess, and that therefore Parliament would be the most appropriate forum for considering legislative changes on this issue.

Conway, R (On the Application Of) v Secretary of State for Justice [2017] EWHC 640 (Admin)

The claimant here sought to judicially review the Suicide Act, arguing that it was incompatible with his rights under Article 8 ECHR. The High Court refused permission to apply for judicial review on the basis that Parliament had reconsidered the issue of assisted dying following the Supreme Court’s decision in Nicklinson. Parliament decided not to provide for legislative exceptions to section 2(1) of the Suicide Act.

Newby, R (on the application of) v Secretary of State for Justice [2019] EWHC 3118 (Admin)

The claimant applied for judicial review and asked the High Court for the right to examine an extensive body of evidence on assisted dying and to cross-examine expert witnesses in order to determine whether the Suicide Act’s blanket prohibition on assisted dying was incompatible with his rights under Articles 2 and 8 ECHR. The High Court refused his application, stating, ‘There are some questions which, plainly and simply, cannot be ‘resolved’ by a court as no objective, single, correct answer can be said to exist’. The courtroom was felt to be an inappropriate ‘forum for the discussion of the sanctity of life’, particularly given repeated and recent parliamentary debate around the issue of assisted dying which demonstrated a lack of any significant change in societal attitude.

The current legislation

Section 2 of the Suicide Act 1961 (as amended by section 59 Coroners and Justice Act 2009) states the following:

1. A person (‘D’) commits an offence if:
   1. D does an act capable of encouraging or assisting the suicide or attempted suicide of another person
   2. D’s act was intended to encourage or assist suicide or an attempt at suicide

A person may commit the offence of assisted suicide whether or not a suicide (or an attempt at suicide) occurs (s2(1B).

The prosecution must prove that the person charged with the offence intended for someone to commit, or attempt to commit, suicide but it is not necessary to prove that the accused knew or believed that the person so encouraged had been intending or contemplating suicide.

Procedure

Assisted suicide is triable only on indictment so, if charged with the offence, the case has to be heard in the Crown Court (s2(1C)). Following conviction, the maximum sentence that the court can impose is 14 years’ custody and the consent of the DPP is required before proceedings can be instituted for the offence (s2(4)), thus reflecting how seriously Parliament considers those cases which meet the prosecution threshold.

The public interest

In practice, prosecutions for encouraging or assisting suicide are incredibly rare. The latest figures from the CPS show that from 1 April 2009 to 31 July 2020, there were 162 cases referred by the police to the CPS that were recorded as assisted suicide. Of these 162, 107 cases were not proceeded with by the CPS and 32 cases were withdrawn by the police. Nine cases were referred onwards for prosecution for homicide or other serious crime. One case resulted in an acquittal after trial and only three cases have been successfully prosecuted.

As explored above, the DPP’s policy clearly sets out the public interest factors tending towards and against prosecution. The reality is that the vast majority of these cases involve people who are alleged to have taken steps to assist the dying of terminally ill and/or profoundly disabled loved ones. However, the legislation is designed to protect those who may not have capacity, are vulnerable or are the victims of those who hope to benefit from their death.

How we can help

Our Criminal Defence team has extensive experience in representing clients who have been accused of encouraging or assisting suicide. If you have any questions about this you can complete our enquiry form or call the direct line number to speak to our specialist team: +44 (0)20 7014 2020. In the case of emergency, call +44 (0)20 7305 5638 for our out of hours police station assistance. We will discuss your case with you during a preliminary consultation and advise you on the nature of any police investigation, or the case against you if you have been charged.

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