Examination of Witnesses (Questions 2080
THURSDAY 20 JANUARY 2005
QC and MR DAVID
Q2080 Chairman: If it is the same
casethere may be more than one casebut there was
a case last week which was reported in which a former policeman,
I think I am right in saying, was involved in a suicide pact effectively.
The wife died, but he did not, and he was, in fact, prosecuted
and I think there was a conviction. I think it must have been
on a plea.
Lord Goldsmith: He pleaded guilty.
Q2081 Chairman: The sentence was
what was in issue.
Lord Goldsmith: He received a nine-month suspended
Q2082 Lord Taverne: But there are
cases, I understand, where it is sometimes decided not to prosecute.
Are there any guidelines on that slightly grey area where sometimes
it is not quite clear whether it is a case of assisted suicide?
Lord Goldsmith: The Crown Prosecution Service
would be responsible in England and Wales for deciding, once a
file is provided to them by the police, if it is, whether there
should be a prosecution. There is no offence-specific policy for
offences under the Suicide Act particularly. Each case would be
reviewed on its merits to look to see whether the evidence supported
the charge and where the public interest was in favour of charge
a prosecution would be brought. The case that Lord Taverne has
just referred to is one of them. There was another recent case
where, in fact, the wife was acquitted of assisted suicide. It
was alleged that she had helped her husband to try and commit
suicide by purchasing paracetamol for him and assisting him to
take it. She was acquitted of that, but the prosecution took place.
I think there may be another one in the wings as well. There is
no policy of not prosecuting these. Each case would be looked
at on its own merits and, if appropriate, a prosecution would
presently be brought.
Q2083 Chairman: The prosecution system
would apply the ordinary rule of needing sufficient evidence and
then a judgment on whether or not public interest required the
prosecution to go ahead?
Lord Goldsmith: Yes.
Q2084 Chairman: There might be specific
provisions for some other types of offence, but not in this particular
Lord Goldsmith: No, that is right.
Q2085 Baroness Jay of Paddington:
I was not intending to make the point at this moment, but I do
think this is interesting to ask as non-lawyers. I have found
it enormously helpful that you have set out these various cases
in the way that you have, and the conversations you have brought
to bear reflect a conversation which we have had in other sessions
about people reading these cases and how they are reported, etcetera,
which, of course, has nothing to do with the law in itself. For
example, picking up the point at the top of page sevenand
this is something, again, we have discussed a great dealabout
people going to other countries to assist their suicide, what
is rather colloquially called "death tourism", the general
rule is that the English courts do not accept jurisdiction for
offences committed outside England and Wales. You may say that
this is drifting into the policy area and beyond the legal area,
but do you think there is a growing perception that there is a
muddle about all of this in relation to these different types
of cases, the one that Lord Taverne has raised with you, which
we have discussed here before, the questions, as you say, of individual
cases being looked at on the basis of the object of the prosecution
and issues, as I say, about "death tourism" not being
legitimately prosecuted under English law? Is there a sense in
which the common law is building up a series of cases which are
not enormously clear, because often the justices, as you have
quoted and we have seen in other places, say that this is ultimately
for Parliament to decide or for society to consider?
Lord Goldsmith: I think there are two principles.
The first is that it is for the prosecuting authorities to apply
the law as Parliament lays it down. It is not for the prosecuting
authorities to decide that a particular law is or is not a good
idea, and therefore it would be wrong in principle for a prosecuting
authority to decide that it was on some wholesale basis not going
to apply the law because it thought that it would be better if
it were not there. Firstly, it is for the prosecuting authority
to apply it, and that is what the prosecuting authority seeks
to do: it looks at all the circumstances of the caseit
does not need a prosecution in every single case, as it does not
in relation to any area if one looks at the evidence or the circumstancesbut
the second is a clear principle that, save in exceptional circumstances,
the courts in this country do not prosecute, do not accept jurisdiction,
do not prosecute people for things that they do abroad. There
are exceptions. We have made exceptions in relation to war crimes
and hostage taking, very serious offences of that sort, and occasionally
in relation to murder as well, but, generally speaking, what people
do in other countries, if it is lawful by the laws of those other
countries, we would not think it right, or we do not prosecute,
and we cannot. In those cases where a suicide has taken place
abroad, it would be appropriate to look at the events which have
taken place in this country, because those might themselves amount
to an offence. They might not, but, if the events which have actually
happened in this country do not amount to an offence, then there
will not be an offence to prosecute.
Q2086 Baroness Jay of Paddington:
You think the consistency is absolutely there both in practice
and in principle?
Lord Goldsmith: I have no reason to think that
the prosecuting authorities are not acting consistently in those
areas. I understand, on a more general basis, and it is true in
other fields as well, that different countries adopt different
rules, given the ease of travel. It may sometimes give the impression
that, providing you go somewhere else, you can do something you
cannot do here and is that right? I think it is a bigger policy
question whether that should happen. One of the recent cases involved
the question of whether the local authority should try and stop
somebody from travelling abroad in order to commit suicide.
Q2087 Baroness Finlay of Llandaff:
I wonder if I might ask you a little bit more about events surrounding
suicide. One of the issues that came to my mind was coercion,
where somebody may be given inconsistent messages saying that
they should commit suicide in whatever form, and whether persistent
coercion has ever been viewed as an offence where they are not
practically aiding and abetting the act of the suicide but may
have been aiding and abetting the thought processes that led to
it and where that stands in law?
Lord Goldsmith: The consent, of course, would
not be a defence to murderthe fact that the person wants
to be killed is not a defence to murderand, equally, consent
is not a defence to aiding and abetting suicide. That obviously
is the very essence of the offence. When one is in the field of
refusal of medical treatment and things of that sort, if one is
looking for whether or not that is the consent of a person who
is wanting to do that, we will be looking to see whether, in fact,
it was genuinely consent or whether it was not consent. I will
ask Mr Perry if he want to anything to this which would be helpful
in answer to that question.
Mr Perry: Only this, that if the person subject
to coercion does not attempt to commit suicide or, in fact, commits
suicide, the offence contrary to section 2 would nevertheless
be established, because it is a statutory form of counselling
or procuring and, therefore, in accordance with ordinary principles,
if you encourage the commission of an offence, it does not actually
matter if what would have been the offence in fact takes place,
it is a statutory form of inchoate offence, so that would nevertheless
be something that the criminal law could involve itself with.
Q2088 Baroness Finlay of Llandaff:
That is very helpful, but I wonder if I might ask you another
question. We have heard from the estimate, Lord Joffe suggested
that between, I think, three and seven per cent of people who
would be potentially eligible under the bill proposed would be
people who would avail themselves of it. I have tried to do some
rough sums and make that about 15,000 deaths a year potentially,
given the number of deaths in the UK where we have over 600,000
deaths a year. If I have got my maths wrong I hope you will forgive
me. I wondered how the Crown Prosecution Service or the Coroner's
Service could potentially cope with that number and whether there
is a precedent anywhere other than in the Abortion Act for pre-event
reporting: because the Bill that we have been considering is post-event
reporting and the criminal justice system obviously acts on post-event
reporting, but with the Abortion Act we do have pre-event reporting
occurring. I wonder if that does provide any safeguards in law
or whether that is a procedural auditing and monitoring process
only but does not help within the law?
Lord Goldsmith: I do not know about the numbers.
I cannot comment either on the maths or on the underlying figures.
Just pausing over the issue of pre-event reporting, I cannot think
of any area in which, as far as the law enforcement authorities
are concerned, there is some pre-event reporting, and, indeed,
on the whole, we are rather against being asked in advance to
sanction whether something will or will not be an offence if it
is done, because one really wants to see what all the circumstances
are rather than hear somebody's account of what they might be.
Q2089 Baroness Finlay of Llandaff:
Because with abortion the forms have to be signed prior to the
abortion occurring, and the abortion would be deemed to be illegal
if those forms have not been signed prior, and those forms are
notified through. Admittedly it is within the Health Services.
It is not notified to a court of law, but I wondered what the
legal status was around that?
Lord Goldsmith: They are not notified, as far
as I am aware, to the law enforcement authorities, so the police
and the prosecuting authorities have no idea that a particular
abortion is about to take place and are not, therefore, involved
in any way in the predetermination of that.
Q2090 Baroness Finlay of Llandaff:
I wonder if there is any attempt in law of the assessment of capacity?
I know that we are dealing with this in relation to the Mental
Capacity Bill, but it is recognised in practice that the amount
of capacity that you need for a decision depends on the size of
that decision, and I wondered if there is any precedent in law
over assessing capacity ?
Lord Goldsmith: The courts, and particularly
the family courts, are faced from time to time with having to
determine, sometimes on disputed medical evidence, whether a particular
person does or does not have capacity, and one of those is the
decision of the President, Dame Elizabeth Butler-Sloss, in the
Miss B case. There is a long analysis in that case of the
competing medical evidence and the conclusion which the President
reached as to whether there was capacity or not. That may well
be of interest for you to look at, but I do not think there is
a simple answer I can give. It is an examination of all the circumstances
in the case and the evidence from competent medical people, and
others, of the individual themselves and the court's assessment
which leads to the conclusion.
Q2091 Chairman: I think I would be
right in saying that the main content in that case was whether
or not the lady in question had capacity. The doctors were refusing
to accept her statement of what she wished because they thought
she did not have capacity, and one of the bases on which they
suggested that was to them the somewhat irrational looking appearance
of her requirement, and I think the President had to analyse the
concept very fully. Perhaps that is the best analysis, which is
easily attainable in the Law Reports, of this particular problem.
Lord Goldsmith: Yes, that is why I referred
Q2092 Lord Joffe: Firstly, to come
to a point which was raised about the onus of proof, I think clause
10 actually deals with that in the Bill and it specifically refers
to a physician acting in good faith. I wondered whether, in your
view, that would have an effect on the onus as it was intended.
Lord Goldsmith: I am not at all sure that it
does do that. It says "acting in good faith", but it
says nothing about who has the burden of proving that he was acting
in good faith or was not acting good faith, and it would not be
at all unusual to have a statute which would say a person doing
X, Y or Z or being X, Y and Z shall not be guilty of an offence,
but the onus may still remain on the prosecution, at least if
the person who raises the possibility that it is a fact that is
proven. This is partly a drafting issue, but it is also an issue
about what is known in law as reverse burdens of proof, where
there are statutes which appear to have imposed on an individual
the burden of proving something such as that he was not driving
at the time, or whatever it may be, and the courts have said that
sometimes that has to be read as still leaving the fundamental
burden of proof on the prosecution to disprove that fact beyond
a reason doubt. It is quite a well travelled area of jurisprudence,
which Mr Perry is very familiar with, but I am not sure that there
is anything else to add on that.
Q2093 Chairman: Do you want to add
anything, Mr Perry.
Mr Perry: No thank you.
Q2094 Lord Joffe: The only other
question I want to ask, and it is building on the questions raised
by Lord Taverne and Lady Jay but with a view to putting some context
into it: according to evidence submitted to the Committee, 22
British citizens have been assisted to die in Zurich by an organisation
called Dignitas. Happily none of their families or friends who
accompanied them to Zurich appear to have been prosecuted. As
British membership of Dignitas has rocketed from 90 in 2002 to
557 last month, it is clear that there will be many more assisted
deaths in Zurich. The public, I think, are confused about what
the law is in the light of these facts. Would it not be in the
interests of justice for the Director of Public Prosecutions to
publish the criteria he uses in deciding in such cases whether
to bring a prosecution under clause 2 of the Suicide Act, so that
members of the families who wish to accompany their families or
friends on what is a sad last journey could make a decision as
to whether or not they are in breach of the law?
Lord Goldsmith: The question was raised in the
very sad case of Dianne Pretty whether or not the Director of
Public Prosecutions could and should produce advance guidance
as to the criteria that he would apply, but the view has been
taken by the Director that he ought not to attempt to do that,
that he should continue with the policy that he presently has,
which is of reviewing the circumstances of any case presented
to him after a police investigation, deciding, on the circumstances
of the case, whether a prosecution should be brought or not. Part
of the reasoning for that, as I understand it, is that it would
be inappropriatebecause this is really what was being put
himfor him to issue a policy the effect of which was to
say that, "I the Director of Public Prosecutions have decided
to suspend or not to apply part of the law which Parliament has
put in place and has not removed." The only footnote I would
add is that Lord Joffe referred to cases where it is understood
people have committed suicide with assistance at the premises
of Dignitas in Zurich. I understand that investigation at least
into certain cases there have not been completed, so I do not
think one should draw from the fact that there have not been any
prosecutions at this stage, that there may not be.
Baroness Jay of Paddington: I thought
you said to me categorically that because these cases were without
the jurisdiction of the English and Welsh law that it would not
be appropriate at this stageI think the phrase you used
in the papers it was "generally accepted that they would
not be prosecuted" anyway?
Chairman: That is in respect of offences
committed solely abroad.
Baroness Jay of Paddington: I thought
we were talking about solely abroad?
Chairman: I think that is the point.
Q2095 Baroness Jay of Paddington:
I am so sorry, I misunderstood what you said.
Lord Goldsmith: What I would seek to say is
that in relation to what happens abroad there cannot be a prosecution.
In relation to what happens here there can be, and at least in
theory there is the question as to whether what is done prior
to leaving the country in order to go to Zurich amounts to aiding
and abetting, counselling or procuring.
Q2096 Baroness Jay of Paddington:
So that a case like the one of Z v the Local Authority,
not necessarily that one, but those kinds of circumstances could
be looked at again?
Lord Goldsmith: Yes.
Q2097 Chairman: I think paragraph
17 deals with this point expressly at the first sentence there,
and so the question in any such case is whether arrangements were
made in England or whether the arrangements were made only abroad.
If they are made only abroad, there would be no question of prosecution.
If they are made to some extent in England, there might be, and
the Attorney has said there are some investigations, without specifying
which cases, still going ahead, and therefore one cannot say for
sure, but the jurisdictional position is reasonably plain. Whether
or not in any particular case there were arrangements sufficient
to breach the law made in England already would be perhaps more
difficult to determine, but it would require investigation.
Lord Goldsmith: Absolutely.
Q2098 Chairman: I think I am right
in saying that your evidence earlier would cover this, that the
Director of Public Prosecutions has no specific policy relating
to that type of offence. It was general criteria which are used
for deciding whether or not prosecutions should be brought that
apply to this as it would apply to the vast majority of other
Lord Goldsmith: Yes.
Q2099 Baroness Thomas of Walliswood:
I am not a lawyer, and I hope you will forgive me if I ask a question
which does not make sense in your terms, but I am going to try
my best to ask it all the same. As I understand it, and we see
it in the Bland case, the courts make law in the sense
that a serious judgment delivered in a court of law becomes a
precedent for later cases in which the same circumstances arise.
I hope I have got that more or less right. At same time there
are pressures upon the courts which come from what you may broadly
call society as a whole. People's attitudes change, and the law
perhaps does not change as quickly as the attitudes change, and
that is probably quite sensible. The possibilities which are open
to medicine, and this more relevant for this particular circumstance
we are talking about, also change. People can be preserved in
life for longer than was possible years ago with similar conditions.
What I would like to know is whether there is any sense in which
this series of cases, which we have discussed in various contexts,
actually amounts to any perceptible shift in the way that the
courts are handling these extremely difficult, contentious and
controversial cases. I wonder if you could throw any light on
that area for us?
Lord Goldsmith: The traditional lawyer's view
is that courts do not make law, they simply declare law which
has always been there, but I think that is no longer regarded
as a realistic approach in what takes place. I say this with some
diffidence in the presence of the Lord Chairman.