News and Comment: first application of DPP’s Final Policy on assisted suicide

In the first case in which the DPP’s Final Policy on Prosecutions for Assisted Suicide has been applied, the DPP has decided that it would not be in the public interest to prosecute Caractacus Downes, the son of Sir Edward and Lady Joan Downes.

In July 2009, the conductor Sir Edward and his wife Lady Joan ended their lives at the Dignitas clinic in Zurich. Sir Edward was described as “almost blind and increasingly deaf” in a statement released by the couple’s children, while Lady Joan was described as “terminally ill”.

Following a police investigation, senior Crown Prosecution Service prosecutors determined that no public interest determination was necessary in relation to the couple’s daughter, Boudicca — who lives in Rome and met her parents and brother in Zurich — as “there is no evidence that she undertook any act in England and Wales that could have assisted her parents in committing suicide.”

The CPS found that the couple’s son, Caractacus, had booked a hotel room in Switzerland for his parents before leaving England with them and accompanying them to Zurich.

“We have considered carefully whether these acts can properly be characterised as assistance for the purposes of section 2(1) of the Suicide Act 1961. Whilst we recognise that some may take a different view, we are satisfied that, taken together, such acts are capable of constituting assistance. As Mr Downes fully accepts that he undertook those acts, there is sufficient evidence to provide a realistic prospect of conviction for an offence contrary to section 2(1) of the Suicide Act 1961 in accordance with the Full Code Test, as set out in the Code for Crown Prosecutors (the Code).”

Thus the CPS then considered whether such a prosecution would be in the public interest, applying the factors from the Final Policy:

“With regard to factors tending in favour of prosecution, it is clear that both Sir Edward and Lady Downes were able to undertake the acts that Mr Downes undertook on their behalf.

However, with regard to factors tending against prosecution, it is also clear that Sir Edward and Lady Downes had each reached a voluntary, clear, settled and informed decision to commit suicide.

In the context of those decisions and the steps taken by Sir Edward and Lady Downes to give effect to their decisions, the actions of Mr Downes, although sufficient to come within the definition of the offence, were very much only of minor assistance.

The evidence and information available indicates that Mr Downes was wholly motivated by compassion.

The police have confirmed that Mr Downes reported his parents’ suicide to them through his solicitor and that he fully assisted them in their enquiries into the circumstances of his parents’ suicide and his part in providing assistance.

There is information to suggest that Mr Downes has benefited financially from the death of his parents as a result of their wills. It might be said, as a result, that it is difficult to conclude that he was wholly motivated by compassion in giving his parents the assistance that he did.

The relationship between compassion and financial gain is considered in paragraph 44 of the Policy. There, it is recognised that a suspect may gain some benefit from the resultant suicide of the victims. The Policy states that the critical element to consider is the motive behind the suspect’s act. If it is shown that compassion was the only driving force behind his actions, the fact that the suspect may gain some benefit will not usually be treated as a factor tending in favour of prosecution.

Having reviewed all the available information, we have concluded that this is a case where the only driving force behind Mr Downes’ actions was compassion. Accordingly, we do not regard the fact that he stands to gain financially in accordance with the terms of his parents’ wills as a factor tending in favour of prosecution in this case.

Having assessed the public interest factors in accordance with the Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, we are sure that the public interest factors tending against prosecution outweigh those tending in favour. As a result, consent has not been given to the bringing of a prosecution against Mr Downes for his part in the suicide of his parents.”

The decision is unsurprising, given the large number of similar cases in which no prosecution has been brought. It is interesting, though, that no mention was made by the DPP of factors 4 and 5 against prosecution:

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;

As I have recently written in the Solicitors Journal, these two factors

“encapsulate an idealised scenario that involves an unwilling ‘suspect’ and a determined ‘victim’ . . .

No reasons for the inclusion of these factors have been provided, although they were supported by two thirds of consultation respondents.

What if the suspect is fully supportive of the victim’s decision, recognising that the victim has reached his or her own decision and agreeing that it is the right course of action for him or her in the circumstances? Does this make prosecution more in the public interest than if the suspect is ‘reluctant’ and sought to ‘dissuade’ the victim? Factor 4 envisages the decision to seek assisted suicide as an unwise or irrational decision from which the person should be dissuaded, or at least suggests that this is how the ideal suspect should react to the decision. The inclusion of these two factors seems to prescribe a certain kind of emotional reaction on the part of a family member or friend to the victim’s condition; for example, not accepting a terminal diagnosis, or wanting the person to remain alive as long as possible.”

It will be worth watching whether these factors are omitted from further decisions on the application of the Final Policy. If they are applied in future cases, it will be interesting to see how this will work.

More difficult cases will undoubtedly emerge, including those where:

  • the assisted suicide takes place within England and Wales
  • the act of assistance is not a minor one
  • a healthcare professional has provided assistance

In relation to the latter, a decision is expected next month in the case of Dr. Michael Irwin, who paid for his patient Raymond Cutkelvin’s flight to Zurich. Dr. Irwin was also involved in the earlier assisted suicide of Patrick Kneen.

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