Comment: the Gosling case and euthanasia by family and friends

The broadcaster Ray Gosling has now been arrested on suspicion of murder following his on-air confession to euthanasia earlier this week. I was interviewed about this case and end of life decision-making on World News Today on BBC World/BBC Four last night. The evidence I discussed is from Seale C. (2009) End-of-life decisions in the UK involving medical practitioners. Palliative Medicine, 23, 3, 198-204 (Athens password required for full-text).

How do criminal justice systems respond to cases of euthanasia by family and friends? Most common law and some civil law jurisdictions treat termination of life on request or voluntary active euthanasia as murder. That is, the presence of a request does not affect the charge brought: termination of life on request is treated similarly to termination of life without request, although sentencing may reflect the presence of a request. Separate offences of pre-meditated murder and poisoning or administering a noxious substance are also available in some jurisdictions. These offences could be used in cases with or without a request.

Some civil law jurisdictions have a separate, lesser offence of consensual homicide or termination of life on request. In Switzerland, for example, Article 114 of the Penal Code provides that: ‘Every person who shall for honourable reasons, especially mercy, kill a person on his or her serious and pressing request, shall be liable to imprisonment.’ Some civil law jurisdictions have separate offences of compassionate homicide. In Germany, for example, compassionate killing in the absence of a request is prosecuted as the lesser offence of manslaughter. Similarly, in Colombia, a separate lesser offence of compassionate homicide is available to a defendant who killed another in order to end intense suffering stemming from injury or serious and incurable illness (see P. Lewis, Assisted Dying and Legal Change (OUP, 2007), pp.6-8).

In the UK, murder is the most obvious charge. However, a number of covert tools may play a role in this context, so that in the absence of a lesser offence of consensual or compassionate homicide, the response of the criminal justice system nonetheless reflects the differences between such cases and other homicides.

One example of such a covert tool is jury nullification, that is, ‘the jury’s power to acquit on compassionate grounds, even if instructed that the accused has no defence in law’ (B. Sneiderman et al., Canadian Medical Law (3rd ed., 2003) 637). Perhaps because of the risk of jury nullification, prosecutors have been willing to accept guilty pleas to lesser offences, thus avoiding the prospect of a jury trial. The House of Lords Select Committee on Medical Ethics reported that in 22 ‘mercy-killing’ cases between 1982 and 1991, only one defendant was convicted of murder (which carries a mandatory life sentence), charges were downgraded to lesser offences in the other cases, resulting in probation or suspended sentences; all of the defendants were family members or acquaintances (Report, HL Paper 21-I (Session 1993-1994) [128]).

Selective charging decisions may also make convictions unlikely. In some cases prosecutors may decide not to go forward with a prosecution or bring an indictment (or in the United States the grand jury may refuse to indict). Interestingly, the presence of prosecutorial and judicial ‘flexibility’ in assisted suicide and euthanasia cases was considered favourably by the European Court of Human Rights in support of the proportionality of a blanket ban on assisted suicide under Article 8(2) of the European Convention (Pretty v. U.K. (2002) 35 E.H.R.R. 1, [76] (Eur. Ct. H.R.)).

Of course, once the case is publicly known, there may be less flexibility for police and prosecutors (see, for example, the case of Dr David Moor, discussed in Anthony Arlidge, ‘The Trial of Dr David Moor’ [2000] Crim. L.R. 31; J.C. Smith, ‘A Comment on Moor’s case’ [2000] Crim. L.R. 41; James Goss, ‘A Postscript to the Trial of Dr David Moor’ [2000] Crim. L.R. 568, all of which are available with an Athens password via Westlaw). Judges, however, may still hold or suggest that someone performing euthanasia did not intend the person’s death (most commonly in cases involving doctors using morphine, see P. Lewis, ‘England and Wales’ in John Griffiths, Heleen Weyers & Maurice Adams, Euthanasia and the Law in Europe (Hart, 2008, pp.350-351)). Or the judge may find that the person did not cause the death — when much time has passed, causation may be difficult to establish. For example, in 1990, the prosecution discontinued its case against Dr. Lodwig, an English doctor who had reportedly injected his patient, who was suffering from terminal cancer, with potassium chloride (see Diana Brahams, ‘The reluctant survivor: Part 1’ (1990) 140(6453) New L.J. 586, 586-7 (both causation and intention were apparently doubted)). This drug has no palliative or curative effect and produces death extremely rapidly (see, eg, Cox (1992) 12 B.M.L.R. 38 (Winchester Crown Ct.)).

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