Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence


Examination of Witnesses (Questions 2080 - 2099)

THURSDAY 20 JANUARY 2005

RT HON LORD GOLDSMITH QC and MR DAVID PERRY

  Q2080  Chairman: If it is the same case—there may be more than one case—but 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 sentence.

  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 case?

  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 seven—and this is something, again, we have discussed a great deal—about 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 case—it 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 circumstances—but 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 murder—the fact that the person wants to be killed is not a defence to murder—and, 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 to it.

  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 inappropriate—because this is really what was being put him—for 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 stage—I 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 offences?

  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.


 
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