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Mens rea, motive and assisted suicide: does the DPP's Policy go too far?
Published online by Cambridge University Press: 02 January 2018
Abstract
The issue of decriminalising euthanasia and/or assisted suicide has been the subject of a number of high-profile cases, the most recent of which was the Court of Appeal decision in R (Nicklinson & Lamb) v Ministry of Justice [2013] EWCA Civ 961. This paper will focus on the offence of assisted suicide and Martin's argument that the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, issued by the DPP following the House of Lords' final judgment in R (Purdy) v DPP [2009] UKHL 45 failed to provide foreseeability where a prospective assister was not someone with an emotional connection to the requester. The success of this claim offers a fresh opportunity to examine a somewhat neglected aspect of the Policy that emanated from the Purdy case, namely its potential challenge to the oft-stated claim that motive is irrelevant to mens rea. It is my contention that the Policy has (effectively) amended s 2 of the Suicide Act 1961 by making compassion/motive a definitional element of the offence, and that this is problematic because it contravenes a limitation imposed by the maxim that supports the doctrine of parliamentary supremacy.
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- Copyright © Society of Legal Scholars 2015
Footnotes
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This paper was prompted by a discussion with Professor N Naffine. I would like to thank Dr F Donson and the reviewer for their helpful feedback.
References
1. [2013] EWCA Civ 961 [hereinafter Nicklinson].
2. This case involved three appellants: Tony Nicklinson, deceased, represented by his wife, Paul Lamb and AM, known as Martin. Nicklinson died on 22 August 2012, having refused to eat since the High Court's rejection of his case the week prior: R (Nicklinson) v Ministry for Justice [2012] EWHC 2381 [hereinafter Nicklinson (HC)].
3. [2009] UKHL 45 [hereinafter Purdy]. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide [hereinafter Policy] was issued in February 2010 and is available at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed 21 August 2013).
4. Nicklinson, above n 1, at [115] et seq.
5. This point has been touched on in a number of the articles that have considered the Purdy case but it has not been explored in any great detail. However, in those articles that do mention the maxim, there seems to be an acceptance that motive is not properly to be considered within the criminal law. See Biggs, H ‘Legitimate compassion or compassionate legitimation? Reflections on the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide ’ (2011) 19(1) Fem Legal Stud 83 at 90. Biggs, however, acknowledges the role of motive in sentencing. Ibid, at 86. Heywood notes that the ‘introduction of motive as a factor to be considered in assisted suicide is novel’ on the basis of the irrelevance claim:CrossRefGoogle Scholar Heywood, R ‘The Dpp's prosecutorial policy on assisted suicide’ (2010) 21 (3) King's L J 425 at 439–440.CrossRefGoogle Scholar See also Biggs, ibid, at 86, 87, and Mullock, A ‘Overlooking the criminally compassionate: what are the implications of prosecutorial policy on encouraging and assisting suicide?’ (2010) 18(4) Med L Rev 442 at 455. However, Mullock notes that the introduction of motive in this context is not entirely ‘novel’, citing the utilisation of the doctrine of double effect in cases where doctors prescribe potentially lethal doses of pain medication:CrossRefGoogle ScholarPubMed ibid, at 456.
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