Giving serious attention to the issue of assisted suicide and to this policy over coming weeks is important because although the policy is - as it says - interim, it is currently in force and is only open for public consultation until 16th December. A final policy will then be produced in early 2010.

What follows offers a short guide to the issues relating to the policy on the assumption - which cannot be defended here - that Christians, on the basis of their belief in the value and worth of all human life because all humans are made in the image of God, should oppose assisted suicide and its decriminalization. A good short case for opposing deliberate killing of those who are ill has recently been made by Nigel Biggar whose Aiming to Kill (DLT, 2004) remains an excellent fuller account of the ethics of suicide and euthanasia.

Is the law being changed by this interim policy?

No, the DPP has no power to change the law which remains as it has been since the Suicide Act 1961 - someone who aids, abets, counsels or procures/assists the suicide of another person or their attempted suicide has committed an offence and is liable to prosecution and up to fourteen years imprisonment on conviction.

So what is the interim policy?

The decision about prosecution of any alleged crime requires the consent of the DPP. In deciding whether to prosecute there is a general code. The two main tests are whether there is sufficient evidence for a realistic prospect of conviction on the charge and, when there is, whether prosecution is in the public interest. The public interest factors relate particularly to the seriousness of the offence and the circumstances of the suspect and the code lists common public interest factors in favour of prosecution (5.9) and against it (5.10).

The interim policy (available as Word or PDF) in relation to assisted suicide makes clear that prosecutors will apply this general code (para 7) and the interim policy itself amounts to 'further guidance setting out additional factors that may be relevant when deciding whether a prosecution for assisted suicide is needed in the public interest in a particular case' (para 5). It does not give any guarantees about whether or not people will be prosecuted, clearly stating that 'the DPP cannot assure a person in advance of committing a crime that a prosecution will not be brought, and nothing in this policy can be taken to amount to such an assurance' (para 2).

Why is the policy being issued?

It is highly unusual to make public the policy for prosecution in relation to a specific criminal offence but the DPP was ordered to do so by the House of Lords in July (overturning earlier judgments in favour of the DPP's refusal to publish). This was as a result of the case brought by Ms Debbie Purdy who suffers from multiple sclerosis and was seeking assurances as to whether her husband would be prosecuted should he ever assist her to commit suicide. The judgment was given in the context of over 100 UK citizens reportedly being assisted to commit suicide in the Swiss Dignitas clinic but there being no prosecutions. This has inevitably raised questions as to the DPP's policy. Concerns have been raised both by (1) those concerned the law is being undermined by an apparent blanket refusal to prosecute the significant number of people who have openly assisted a suicide and also by (2) those seeking to change the law and, like Ms Purdy, unhappy about the uncertainty as to whether those family members or friends who assist a suicide will subsequently face prosecution.

What does the policy state?

The policy elaborates each of the two main stages - the evidential and public interest - in relation to assisted suicide. The evidential stage reasserts the current law and also makes clear that assisted suicide is the offence when the victim takes their own life but with some form of assistance and that 'it remains murder or manslaughter to cause the death of someone who wishes to commit suicide but is unable to do so for him or herself' (para 12).

It is the 'public interest factors' which are the focus of controversy. Here the DPP outlines 16 factors in favour of prosecution (abbreviated below to FP), the first 8 of which carry more weight than the others, and 13 factors against prosecution (below as AP), the first 7 of which carry more weight. (Those with more weight are signalled below by *).

The policy is clear that a decision about prosecution 'is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number' but rather a matter of weighing each case on its merits and 'it is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction' (para 15).

What are the main areas of concern in the factors?

It is important to reiterate that these factors and the policy as a whole do not rewrite the law nor do they provide a 'get out of jail free card' to any individual who assists or encourages someone to commit suicide. They also need to be taken as a whole as well as scrutinised individually. Nevertheless, despite these important cautions, the policy does signal what factors are being treated as significant in measuring the seriousness of the crime (and hence the likelihood that any particular instance where there is evidence of assisting suicide contrary to the law will lead to non-prosecution) and some of these are a cause of serious concern. Many of them are acceptable and to be welcomed but there are some serious questions about certain elements of the proposed (currently in force but interim) policy which make response to the public consultation important.

Summary of concerns:

1. Greater clarity that public interest normally requires prosecution if evidence
2. Greater clarity on how FP and AP criteria relate
3. No need to give more weight to some criteria
4. Reference to illness or disability in criteria, especially in AP criteria
5. Reference to previous suicide attempts, especially in AP criteria
6. Privileging family membership, especially in AP criteria
7. Vagueness of "compassion" language
8. Possible other criteria

First, it is to be welcomed that the interim policy makes clear that "Prosecutors will apply the Code for Crown Prosecutors in making their decisions" (para 7). The Code itself states that "Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution" (The Code, 5.7). However, this aspect of the Code is not clear in the Interim Policy. It does not convey the same presumption in favour of prosecution if there is sufficient evidence that a crime has been committed. The interim policy can thus give the impression that the public interest criteria for this offence are applied starting from a neutral view about prosecution even when there is sufficient evidence for prosecution. Both CNK and the CofE response raise concerns about this and it is important that the revised policy clarifies this and makes explicit what is currently at best implicit.

Second, some factors in the "favour" list have a mirror-image in the "against" list (see table below; for example, in favour is if "the victim did not have a clear, settled and informed wish"(FP3*) while against is if 'the victim had a clear, settled and informed wish to commit suicide' (AP1*)). Other factors are unique to one list (eg FP1* is that 'the victim was under 18 years of age' but there is no parallel age criterion in 'against prosecution'). It is not totally clear what significance should be given to these differences but the danger is that any factor in "against" is viewed as a significant mitigating circumstance and implies that an assisted suicide meeting that criterion is less serious an offence.

Third, no explanation or justification is given for the decision to give more weight to some factors compared to others. Nor is it explained exactly what that distinction means in practice. It is also the case that some are given more weight in the "for prosecution" list while their mirror image is not given greater weight in "against prosecution" (see table in appendix eg FP8* and AP9 and AP7*) with no explanation for this lack of parallelism. As the CofE response states, "we find the division of the factors into two distinct lists somewhat arbitrary".

Fourth, the most serious concern is that both lists contain a description of certain medical conditions which when absent make prosecution more likely (FP6*) but when present make prosecution less likely (AP4*). These are "a terminal illness", "a severe and incurable physical disability" and "a severe degenerative physical condition".

There are a number of concerns here. First, the descriptions are very broad and the experience of the Abortion Act warns against such imprecision in areas of life and death. Second, Parliament has explicitly rejected legislation to exempt such conditions from the law so including them here as a possible ground for non-prosecution could be seen as undermining the will of Parliament. Third and most important of all is the problem that this criterion creates a category of people on the basis of a factor outside their control and volition - their medical condition - and states that the implications of a decision to assist them in committing suicide should potentially be different because of their condition. This very easily gives the impression that the DPP views the life of such a person as worthy of less protection because of their condition and that easily could create a culture in which suicide (and so assisting suicide) is viewed as at least rational and appropriate for anyone with that condition, perhaps even expected of them. If one were to replace this with other criteria that similarly created a class of people on the basis of some characteristic over which they had no control eg age (over 80) or race there would be an outcry. The General Code clearly states that Crown Prosecutors "must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual orientations of the suspect, victim or witness influence their decisions" (The Code, 2.2, italics added) and this criterion seems to contradict this.

The best solution is therefore to remove any such reference altogether from the criteria. If, however, it is felt that there is the need to make some distinction (eg on the basis that assisting suicide in response to some life-situations is more understandable than in relation to others, as argued in the CofE response) then any reference to an underlying medical condition must only be in the factors for prosecution (ie not having X makes prosecution more likely) rather than in factors against prosecution (having X makes prosecution less likely). It is regrettable that the CofE response is not as clear on this as it could be, stating that 'even though we do not believe that illness or disability form grounds in and of themselves, for assisted suicide, we accept that, on rare occasions, a victim's personal experience of, and reaction to, illness or disability may be such that a suspect might respond compassionately to the victim's experience by assisting in a suicide". As this quotation shows, the retention of similar wording in the CofE's proposed policy is in large part because of its weakness in relation to compassion (see further point seven below).

Fifth, a similar concern applies to AP11 - "The victim had previously attempted to commit suicide and was likely to try to do so again". While this creates a class of people on the basis of a prior action ('those who have previously attempted suicide') and is presumably seeking to recognise the real concern that, if unassisted, another attempt may fail and lead to serious permanent harm, it fails to acknowledge that attempted suicide is often related to depression, not undertaken as a result of a "clear, settled and informed wish" and that it should elicit strenuous attempts to prevent future repetition not assistance to enable success. This point is made by both CNK and the CofE (despite a strong case possibly being able to be made that assisting someone after a failed attempt may be a sign of acting from compassion).

The oddity of using this criterion can perhaps be illustrated with reference to a hypothetical case which would legally amount not to assisted suicide but attempted murder: if an Underground official had several times prevented a wheelchair-bound person from pushing themselves under a train and then found them teetering on the edge and decided to give a helping hand, should the previous history of attempted suicides be taken into account in judging whether to prosecute? (cf a recent story of someone pushing a suicide jumper off a bridge in China).

Again, this should be removed and if it is to have any place at all it should be not as an AP criterion but an FP criterion - one is more likely to be prosecuted in the absence of any history of suicide attempts.

Sixth, the issue of family and friendship connections (FP10 and AP6*). This factor is dubious on a number of counts. First, it is in tension, quite likely even contradiction, with others as family members are likely to benefit in some way from the suicide (eg inheritance, remove of duty of care) and so this factor is counterbalanced by FP7* and AP5*. Second, despite the addition in AP6* of "a long-term and supportive relationship", it fails to take seriously how abusive family relationships can be and how assistance in suicide may be simply the climax of a long history of destructive relating. Third, it pays no regard to the fact that assistance by one person within the family may be a determined undermining of the wishes of other family members (who may suspect the motives of those assisting or who may hold moral or religious views that lead them to be opposed to breaking the law by assisting in suicide).

Seventh, the reference to 'compassion' in FP7* and AP5* is very vague and gives credibility to the argument that in certain cases compassion justifies the taking of life and opens the door for recognising in law a state of 'mercy killing'. True compassion should not lead to assistance for suicide because , in the words of one of the best brief defences of Christian teaching in relation to euthanasia (and, by extension, to this related but distinct area of assisted suicide), the human response to suffering should be Always to Care, Never To Kill. It is, in any case, very hard to know what it would mean for assistance to be "wholly motivated by compassion" (AP5*) or how a prosecutor could tell whether or not this was the case and thus whether this aspect of any particular case weighed against prosecution (AP5*) or in its favour (FP7*). Most of what is presumably sought to be covered in this criterion is able to be covered by criteria relating to other, more discernible, possible motives for assistance such as financial gain (eg FP13, FP16).

Eighth, given the wide range of possible scenarios, there are questions as to whether there are other criteria which should be included in the list. Among those suggested are, for prosecution, the victim having suffered a significant bereavement in the last year or having a history of drugs, alcohol or substance abuse and against prosecution that the suspect was put under sustained and focussed pressure to act in the way they did.

What can be done?

It is important that those concerned about the law in this area - which all Christians should be - respond to the DPP during the public consultation period which runs until December 16th. This can be done online by email or by post. Full details are available on the DPP website. As already noted, the CNK and CofE responses are both worth reading.

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