A Matter of Life and Death: Right to Die and The Law

Monday, August 20th, 2012

Ask yourself three questions;
1) Do we have the right to take another’s life?
2) Do we have the right to take our own life?
3) Do we have the right to assist someone to take their own life?

The answer to the first question is ‘sometimes’; for example in an extreme example of self defence, or if you are a soldier at war within the rules of engagement.

The second question is addressed by the Suicide Act which decriminalised taking your own life in 1961. It remains, however, a criminal offence to assist someone to commit suicide.

Section 2 of the Suicide Act 1961 sets out the offence of Assisted Suicide: “A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” The Director of Public Prosecutions must give permission for a prosecution under this legislation.

The third, very poignant legal and ethical question has been examined in detail by the High Court in the case of Tony Nicklinson. Mr Nicklinson suffers from the deeply debilitating Locked In Syndrome which occurred after suffering a serious stroke in 2005. The result of which left him paralysed from below the neck and in need of around the clock medical care. Mr Nicklinson bought his case before the judges at the High Court asking them to re-examine the current legal position. This is not without precedent, as in 2009 the issue was bought to public prominence by Debbie Purdy who suffers from Multiple Sclerosis. Mr Nicklinson is of sound mind and has reached a crisis point where he feels unable to continue what he himself has described as a miserable undignified life. He asked the Court for the right to take his life at a time of his choosing. Unfortunately for Mr Nicklinson, due to the nature of his disability, he is unable to take his own life and would therefore need someone to assist on his behalf.

Murder in the UK is the unlawful killing, when in sound mind, of a human, by another human in peacetime, when the killer has the intention to kill or cause grievous bodily harm. Under the currently legal definition for murder, anyone that assists Mr Nicklinson would face the real risk of being arrested and charged with his murder which if found guilty, holds a mandatory life sentence. Alternatively, the charge of Assisted Suicide is punishable with 14 years imprisonment.

On Friday 17th August 2012, three High Court Judges unanimously rejected Mr Nicklinson’s request and stated that a change in the law of this magnitude was a matter for Parliament and that it was not for the Courts to change the law.
This ruling saw Mr Nicklinson break down in tears as this now leaves him with the following options if he wishes to bring his life to a premature end:

• Starve himself: which will surely lead to a prolonged period of suffering
• Travel to a country that does allow assisted suicide such as Switzerland
• Ask someone to “murder” him or assist his suicide and face the possible legal consequences of their actions

There are some partial defences to a charge of murder which will result in the defendant being found guilty of manslaughter. The maximum sentence for manslaughter is life imprisonment, but it is not a mandatory sentence as it is for murder, leaving scope for a sentence being imposed that is substantially less than the maximum when the sentencing judge takes the circumstances of the offence into account. The law on partial defences was contained in the Homicide Act 1957. This was amended by the Coroners and Justices Act 2009, which provides that the partial defences now are loss of control, diminished responsibilty and taking part in a suicide pact.

There are numerous general defences to the charge of murder, for example, acting in reasonable self defence, which would result in a complete acquittal if successfully argued.

None of these defences would be available to a doctor or relative that eased Mr Nicklinson into unconsciousness and subsequently, death surrounded by his loved ones as he so wishes. The High Court ruling has been backed by pro life religious groups who argue the total sanctity of life in any circumstances and that only God can take a life. They also point to “miraculous” recoveries such as Graham Miles suffering from severe symptoms have recovered without medical explanation.

Pro choice groups such as www.dignityindying.org.uk argue that, if life is intolerable, or one suffers from an incurable terminal illness then he or she should be allowed to control their fate accordingly as long as no one else is harmed and that stringent safeguards are put in place. Advocates of this view point are countries such as Switzerland, who have been operating this system for years without mishap.

In this writer’s opinion, the biggest obstacle that stands in the way of any successful prosecution is the public interest test. One should consider whether it is in the public interest to have an expensive trial (Crown Court costs are currently estimated at £30 a minute) to send a member of the public, likely to be of good character, to prison at the cost of their liberty and a further cost of around £50,000 a year to the already over stretched tax payer for assisting a sane competent adult to do something they already want to do? Whether anyone makes the Director of Public Prosecutions initiate this test remains to be seen.

Hanne & Co’s Criminal Department are experts in Criminal Law and can advise on offences ranging from petty theft to murder. We have represented clients throughout complex court proceedings for over 100 years. If you are seeking advice on a criminal offence or you have been arrested in connection with an alleged offence, please contact one of our Criminal Law solicitors on 020 7228 0017 or by emailing Hanne & Co’s Criminal Law Department.