Job: Research Assistant in Criminal Justice and Health at the University of Lincoln

30 January 2017

University of Lincoln, College of Social Science, School of Health and Social Care
Salary: £26,829
Hours: Full Time
Contract Type: Fixed Term
An opportunity has arisen for a highly motivated Research Assistant with relevant research skills and experience to undertake criminal justice and health research funded by the National Institute for Health Research and under supervision of Dr Coral Sirdifield in the Community and Health Research Unit (CaHRU).

Based at the University of Lincoln Brayford Campus, the Research Assistant will also work closely with members of the project steering group and external advisory group, including service user representatives where this is needed.

The Research Assistant will report directly to Dr Sirdifield and will also be provided with support from other members of the research team as needed.

You will be involved in all aspects of the research project, including: undertaking a narrative systematic literature review; conducting thematic analysis of documents; and conducting interviews and surveys with staff from a variety of criminal justice and health related organisations across England. You will also contribute to the preparation of reports, conference abstracts, presentations, and journal articles.

Ideally you will have experience of systematic reviews, qualitative and survey methods. You should be knowledgeable of and proficient in the use of data analysis packages such as NVivo and SPSS. Good written and verbal communication skills are essential, as is the ability to liaise with members of the project team.

You will be qualified to at least honour’s degree level in a relevant subject (1st, 2.1 or equivalent). Previous appropriate methods training and experience in systematic literature reviews and conducting interviews/surveys is desirable. Good written and verbal communication skills are essential. Proven knowledge of writing for publication would be an advantage.

Closing date: Sunday 12th February 2017


Event: 2014 Wellcome Lecture in Neuroethics

27 October 2014

Thursday 30 October 2014,  5.30pm-6.45pm, Oxford Martin School Lecture Theatre, Oxford.

Professor Walter Sinnott-Armstrong

‘Implicit Moral Attitudes’

Most moral philosophers and psychologists focus on explicit moral beliefs that people give as answers to questions. However, much research in social psychology shows that implicit moral attitudes (unconscious beliefs or associations) also affect our thinking and behavior. This talk will report our new psychological and neuroscientific research on implicit moral attitudes (using a process dissociation procedure) and then explore potential implications for scientific moral psychology as well as  for philosophical theories of moral epistemology, responsibility, and virtue. If there is time, I will discuss practical uses of these findings in criminal law, especially regarding the treatment of psychopaths and prediction of their recidivism.

Registration is required.  Please register at https://bookwhen.com/uehiro


Comment: what is the future of the policy for prosecutors on assisting or encouraging suicide?

25 June 2014

In 2013, Martin, one of the claimants in the case known as Nicklinson was successful in his claim at the Court of Appeal. By a majority of 2-1, the Court of Appeal ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide did not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance.

In the Policya group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):

(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;

(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;

(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

(14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;

(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The very role of such professionals was therefore a factor in favour of prosecution (factor 14), while factors against prosecution might also be present, including a compassionate motive (factor 2 against prosecution). The DPP was therefore asked to revise the Policy. Instead, he announced his intention to appeal and today the Supreme Court allowed his appeal. The court would not require the DPP to go further than he did in response to the House of Lords decision in Purdy by providing a list of factors for and against prosecution when deciding whether prosecution would be in the public interest. Martin had sought to force the DPP to identify a class of cases in which prosecution would not be in the public interest. Lord Hughes concluded (at [277]):

It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the [Suicide Act 1961] section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders.

However, this is not the end of the story in relation to the policy for prosecutors. The DPP will need to consider whether the policy should be revised to reflect a claim made by Lord Judge (dissenting on this point) in the Court of Appeal which was accepted by counsel for the DPP before the Supreme Court ([143]):

185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.

186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy … deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution.

Having accepted that a person acting in his or her professional capacity in these circumstances (for example a professional carer, motivated by compassion, who enters into a non-profiteering arrangement to accompany a patient for whom he or she was not previously caring and who has already decided to go to Dignitas) would be unlikely to be prosecuted, Lord Neuberger invited the DPP to change the policy accordingly ([146]):

Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the court’s powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary.

If this remains the DPP’s position, then the policy could possibly be amended to limit the applicability of the current factor 14, though Lords Mance ([193]) and Sumption ([251]) were sceptical that the policy could be so amended without rendering it internally inconsistent or incoherent. Lady Hale, though, was in favour of a more far-reaching review of the policy (at [323]), returning to an argument she made in Purdy about the role such a policy could play in ensuring that the interference with the claimants’ rights under Article 8(1) could be justified under Article 8(2) (which neatly takes us back to the other argument in this case):

It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be “in accordance with the law”. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the “Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate” and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the “non-arbitrary” requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of “dispensing with the laws”. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal.

What can we conclude at this point? Perhaps only that there is no evidence that this DPP will take a more restrictive position on the public interest in prosecuting these cases than her predecessor. Whether she and her team will revise the policy to make prosecutions less likely and thereby possibly encourage greater professional involvement in assisted suicide remains to be seen. As I wrote in response to the decision of the Court of Appeal:

The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).


Comment: Almost two years after his death, has Tony Nicklinson won?

25 June 2014

Today’s decision by the Supreme Court (or see the press summary) in the case begun by Tony Nicklinson dismissed the appeal from last year’s Court of Appeal decision brought by his widow Jane and Paul Lamb. The appellants were challenging the criminal prohibition on assisting a suicide in s.2 of the Suicide Act 1961 on the ground that it is inconsistent with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights. All parties were in agreement that end-of-life decisions including decisions to seek assistance with suicide are covered by Article 8(1) (consistent with the decision of the European Court of Human Rights in Pretty v. UK, in which the Strasbourg Court found that Dianne Pretty’s Article 8(1) right to respect for her private and family life was engaged, and with the subsequent decision of the House of Lords in Purdy v. DPP). A key issue was therefore whether that engagement could be justified under Article 8(2)

as … in accordance with the law and … necessary in a democratic society … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The government provided the same justification as used in the Pretty case (Pretty v UK [76]):

to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life.

Five of the nine justices found that the Supreme Court has the authority to declare s.2 incompatible with Article 8. Two of them (Lady Hale and Lord Kerr) would have made such a declaration in this case; the remaining three decided not to make such a declaration at this point in time, because:

1. Parliament should be given an opportunity to consider the position first as it is the ‘preferable forum’ for resolving this issue ([190]). Interestingly, though, this group of three judges state that Parliament’s decision will not necessarily determine whether s.2 is incompatible with Article 8 ([76], [191]). Thus if Parliament considers the matter and decides not to change the status quo, the possibility exists that a majority of the Supreme Court in a subsequent case will decide that s.2 is incompatible with Article 8, possibly on the basis of a future argument that a system of prospective judicial approval of individual cases of assisted suicide would better protect the vulnerable than the status quo ([108], [123]-[125]). According to Lord Neuberger ([108]),

[a] system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view.

(A tribunal-based prospective approval system was proposed by Terry Pratchett in 2010. Roger Brownsword, Genevra Richardson and I also explored the viability of such a proposal in a submission to the Commission on Assisted Dying in 2011.)

It is worth noting though that Lord Neuberger (at [118]) also considered that the opposite possibility remains open, namely that no declaration of incompatibility would be made by a later court:

it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration.

2. Another reason for the court’s refusal to reach a conclusion on incompatibility yet is that the factual record in this case was problematic. Initially, the claimant Tony Nicklinson had argued for a defence of necessity to murder which would permit voluntary active euthanasia in limited circumstances. By the time of the Supreme Court hearing, the arguments focussed only on potential incompatibility of the offence of assisting or encouraging a suicide, which a severely disabled claimant in the position of Tony Nicklinson or his successor Paul Lamb could commit using a machine triggered, for example, by blinking ([126], [128], [92]-[95], [110], [151]). The three judges who postponed a decision on incompatibility decided that there was insufficient evidence in the record on this issue and also on the issue of the risks to the weak and vulnerable posed by permitting assisted suicide in some cases ([119]-[121], [128], [175]-[177]).

Lord Falconer’s Assisted Dying Bill will be debated in the House of Lords on 18 July. The Bill, though, would not be applicable to Paul Lamb who is not terminally ill (nor would it have been applicable to Tony Nicklinson for the same reason). The challenge to Parliament posed by the majority of the Supreme Court is clear: could a system of prospective approval better protect those who are vulnerable from harm while vindicating the ‘genuine exercise of autonomy’ (Lady Hale in Purdy v DPP at [65])?


Comment: What has ‘Martin’ won?

31 July 2013

By a majority of 2-1, the Court of Appeal has ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide does not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance. The DPP has therefore been asked to revise the Policy. He has however announced his intention to appeal to the Supreme Court.

In the Policy, a group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):

(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;

(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;

(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

(14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;

(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The problem highlighted by counsel for ‘Martin’ at [132] is that those acting in a professional capacity who would therefore engage one or more of these factors in favour of prosecution, may also engage many or all of the factors against prosecution, which are:

(1) the victim had reached a voluntary, clear, settled and informed decision to commit suicide.

(2) the suspect was wholly motivated by compassion.

(3) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance.

(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.

(6) the suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

The majority of the Court of Appeal was persuaded that:

it is not sufficient for the Policy merely to list the factors that the DPP will take into account in deciding whether to consent to a prosecution under section 2(1).  A list of factors which contains no clue as to how the discretion to grant or withhold consent will be exercised is not sufficient to meet the requirements of Article 8(2). . . . If a list of relevant factors does not enable the person concerned to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of his action, then the Article 8(2) requirement is not satisfied.

In the Interim Policy, a subset of each list of factors was designated as “carry[ing] more weight than the other factors” in most cases. In the Final Policy, the designation of some factors as having greater weight was dropped. The Court of Appeal now wants a revised version of the Policy to “give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care.” Of course the DPP’s answer to this request may be that this factor carries significant weight, thereby further discouraging healthcare professionals from providing any assistance in suicide. The Court of Appeal thus recognises that the Policy may be changed to discourage the very assistance ultimately sought by Martin (at [137]).

How might the Policy be changed?

If the Court of Appeal’s decision is upheld by the Supreme Court (or if the DPP is not granted permission to appeal), how might the Policy be changed? The Divisional Court had quoted (at [130]) from the DPP’s evidence to the Commission on Assisted Dying:

it was important to distinguish between as it were one off acts of support or compassion and those that were engaged in the delivery of professional services or a business that would routinely… bring them into conflict with the law, because of the broad prohibition on assisted suicide.

This might eventually mean that ‘Martin’ would need to seek assistance only from individuals who have never before been involved in providing such assistance. It would also ensure that organisations like Dignitas could not be established in England and Wales.

How should the Policy be changed?

The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).


Conference: The power of ‘proper medical treatment’

26 June 2013

Transforming wrong(s) into right(s): The power of ‘proper medical treatment’ 

Chancellors Conference Centre, University of Manchester

Thursday 12 September 2013

In this one day seminar, funded by the Wellcome Trust, we seek to explore the notion of something being ‘proper medical treatment’; the medical exception discussed in R v Brown, R v Bland and by the Law Commission in 1994.  What renders an activity legitimate when otherwise it would not be?  Ignoring the ethics surrounding any particular treatment, what is it about (and why is it that) X but not Y is regarded as proper medical treatment?  Are there (and what are the) inherent differences between X and Y which result in this different (formal or informal) categorisation?  Do the ethical issues raised by X account for the different categorisation, or are other factors relevant?  For example, if a doctor carries out X does this automatically make it proper medical treatment?  What role does patient demand have in this regard; are doctors merely to serve the public and their wants and desires, but what then of professional autonomy and clinical judgement?  Are the motivations for performing X relevant?  Do some medical treatments become accepted as proper through custom and practice and because some doctors feel that they have to do it rather than it being a matter of clinical judgement, a choice?

This seminar aims to promote and facilitate informed debate and discussion via a combination of theoretical papers and case studies in order to explore these issues.  Time will be given for facilitated, in-depth, discussion with the participation of a well-informed audience of legal academics, bioethicists, clinicians, regulators and policy-makers.

Speakers include:

Professor Margaret Brazier, University of Manchester.

Dr Sara Fovargue, Lancaster University.

Dr Danielle Griffiths, University of Manchester.

Professor Celia Kitzinger, University of York.

Professor Penney Lewis, King’s College London.

Dr Barry Lyons, Trinity College Dublin.

Dr Sheelagh McGuinness, University of Birmingham.

Dr Alexandra Mullock, University of Manchester.

Dr Julian Sheather, British Medical Association.

Discussants:

Dr John Coggon, University of Southampton.

Tracey Elliott, University of Leicester.

Professor Bobbie Farsides, Brighton and Sussex Medical School.

Professor Stephen Wilkinson, Lancaster University.

If you would like to attend this seminar please contact Eileen Jones: e.jones [at] lancaster.ac.uk.  Standard rate – £50; PG rate – £20 (10 places).


News and comment: Divisional court decision in Nicklinson

16 August 2012

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament. . . .

84. A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).