Coroners and Justice Bill

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Q 72Dr. Iddon: Young people—teenagers in particular—often write poetry, song lyrics and other material that has a feeling of death or helplessness about it, and post it on a website. Other young people have access to those postings and might be encouraged to attempt suicide. Would the poster of such information be liable to prosecution under clause 46?
Professor Horder: I hope that that would not be the case. That is not to say that I approve in any way of the publication or dissemination of that sort of dark material, as one could call it. But, one has to rely on proposed new subsection (1)(b) in clause 46, which states that the act must be intended to encourage or assist a suicide or an attempted suicide. I will not pretend to be at the cutting edge of contemporary culture, but my understanding is that that sort of posting of music, lyrics or whatever is not intended to produce that effect. There may be extremely depressing songs—there is a long tradition of that—but I do not believe that the material in any of these instances, no matter how many people may have taken it as their cue, was ever intended to have that effect.
Q 73Dr. Iddon: That kind of freedom of expression is, in your opinion, protected under the law.
Professor Horder: That sounds like an invitation to hang myself out to dry, but yes, I believe that it is. It is protected by the need to prove intention in that clause.
Q 74Mr. Garnier: I take on board all that you say about proposed new subsection (1)(b)—the express requirement to prove intent to encourage or assist—but do you think that the use of “capable of encouraging or assisting” in proposed new subsection (1)(a) and elsewhere below is apt to assist? Is it not adding a layer of froth or blancmange? Why do we not just say, “does an act that encourages or assists”, rather than use the words, “capable of”? The judge will make a decision about whether the evidence is capable of proving the particular element of the offence, and it will be for the jury to decide whether it does so in fact, but we see “capable of encouraging” and “capable of encouraging or assisting” throughout this set of clauses on suicide.
Professor Horder: The same phrase appears in the Serious Crime Act 2007 and also in our recommendations for participating in crime more generally. The issue is that these offences are committed, as you know, in the inchoate mode, as we lawyers say. So you do not actually have to have assisted or encouraged to commit the offence. In other words, going back to the example I was talking about a moment ago, where people in a crowd are shouting to the person up above, it would be virtually impossible to do anything in a case like that if you had to show that their voice carried all the way up there and was heard by the person and they could say, “Yes, it was his voice I heard.”
Q 75Mr. Garnier: The problem relates to the city of Derby. The superintendent of the Derbyshire police force said that Derby lost its humanity on that day. Whether or not that is a sensible thing for him to have said is neither here nor there. However, there could be an issue, surely, in a case like that—if you happened to light upon one, two or three of the individuals in the crowd and brought them to court and prosecuted them under this provision—about whether they actually intended something or whether they were just mouthing off and about whether they had the requisite intent to encourage or assist.
Professor Horder: That would certainly be an issue, but that is the 46(2)(b) issue—isn’t it?—rather than a 46(2)(a) issue. In other words, it is an issue about whether there was an intent to encourage, not about whether they had done an act capable of encouraging. If they are shouting, “Jump!”, that is certainly an act capable of encouraging, I would have thought.
Q 76Mr. Garnier: Surely, the better question to ask in that circumstance is, “Did what they shouted encourage or assist?” Of course, one can only do that by inference, because one does not know what is inside the dead person’s mind.
Professor Horder: That is the difficulty, really. I think that we wanted to avoid a lot of cases that would be factually too difficult to determine beyond reasonable doubt, or one way or another, about whether there was encouragement or assistance.
Let us take a silly example. If two people wish to assist someone to commit suicide and both, unbeknown to each other, put a bottle of pills next to the person’s bed and the person takes one lot of pills but not the other and it cannot now be determined whose pills they were, it would be strange, in a way, if both of them were not in the same position. They both did an act capable of assisting the suicide—that is what they did wrong in terms of the law—and it should not really matter which one actually did assist the suicide, because in a way it is a matter of chance. Who knows who it turned out to be?
Q 77Mr. Garnier: It matters a lot to the two individuals who might be prosecuted—one without the intent and one with the intent—and, of course, the prosecution—
Professor Horder: I am assuming that they both have the intent. Let us say that they both have the intent. They both put the pills on the bedside table for exactly the same reason, but without realising that the other bottle that happens to be there is there for the self-same purpose. That is why I say it is a rather silly example. But in a way there is an analogy with the Derby case, because lots of people were encouraging.
The irony is that, the more people there are encouraging, the harder it is to say that any one of them did encourage. As a matter of proof, it is difficult to say, then, is it not? That is why we think that, in terms of the focus initially, it is clearer and simpler to say that there is an inquiry in two parts here. First, was there an act capable of encouraging? And if someone shouts “Jump!”, that is certainly an act capable of encouraging. Secondly, under 46(2)(b), you have to ask whether that act was intended to encourage. It may very well be that, in that case, the person would say, “Oh, I just shouted the words because everyone else was shouting them. I am a bit slow that way. I did not realise.”
Q 78Mr. Garnier: Surely you are going through the same intellectual hoops as you would under section 2 of the Suicide Act 1961, but just adding complications. Everyone who needs to know knows what section 2 of that Act means and how it can be explained to the jury, do they not?
Professor Horder: That is a bold assertion.
Q 79Mr. Garnier: I have only got two minutes.
Professor Horder: We would, broadly speaking, be in favour of updating this language so that it is consistent with what we are recommending across the board when person A becomes involved in the perpetration of a crime or, in this case, a suicide by another person. We think it makes sense to have the same language applying across the board. We saw no reason, here, to say anything different.
Q 80David Howarth: Can I move you on to 2A, which deals with the further rules on acts capable of encouraging or assisting? What is the thinking behind 2A(2), which says that
“Where the facts are such that an act is not capable of encouraging suicide, for the purposes of the act it is treated as encouraging suicide if the facts had been as the defendant believed them to be at the time of the act”?
Is that not going back to the days of impossible attempts?
Q 81David Howarth: No, we do not. But similar questions arise. What if you believe that you could do it by thought transference or witchcraft?
Professor Horder: That is a sort of tutorial question that one asks students.
Q 82David Howarth: I am asking you.
Professor Horder: The great thing about tutorials is that you can ask questions that you do not know the answer to—unlike lawyers. I think that, if I were to venture a solution, something has to be rationally capable of doing that. I do not believe that English juries would take that view in respect of thought transference—if anyone believes in telekinesis, would they raise my right hand?—and those kinds of things.
The Chairman: Do Members have any further questions for Professor Horder? That brings us to the end of our business for the day.
Ordered, That further consideration be now adjourned. —(Ian Lucas.)
12.58 pm
Adjourned till this day at Four o’clock.
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