On 16 October, the Director of Public Prosecutions announced a clarification to the Crown Prosecution Service Policy on cases of encouraging or assisting suicide, following recent comments of the Supreme Court in R (Nicklinson & Anor) v Ministry of Justice and R (AM)  v Director of Public Prosecutions [2014] UKSC 38.

In the judgment, which was handed down on 24 June 2014, the court addressed the lawfulness of the DPP’s “Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide” (“the 2010 guidelines”) which set out the policy in relation to prosecutions under Section 2. The court’s summary of the judgment states, [emphasis added]:

“Section 2(4) of the Suicide Act 1961 precludes any prosecution of a person who has allegedly contravened Section 2 without the DPP’s consent [39]. It is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy [141]. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest [249, 271].

During these proceedings, counsel for the DPP indicated that under the 2010 Policy a stranger who is not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director will be able to consider further whether that indication should stand and whether, if so, the 2010 Policy needs amendment, without it being appropriate to order her to undertake any such review [146, 193, 251 and 323].”

Changes to the DPP Policy

The DPP Press Release states, [emphasis added]:

“In considering the section which indicates the likelihood of prosecution of health care professionals, the DPP has made it clear that this refers to those with a specific and professional duty of care to the person in question.

The relevant paragraph offers guidance on cases where the suspect is “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”.

During earlier proceedings in the Court of Appeal, the then Lord Chief Justice interpreted this guidance to mean that if a person operating in one of the prescribed professions had cared for a victim to the extent that they were in a position of authority, and may have been able to use that authority to exercise undue influence over the victim, then this may be considered as a factor tending in favour of prosecution. In his view it was not to be interpreted as meaning that professionals brought in to help from outside the family circle should be more likely to be prosecuted simply because of their professions.

Therefore the DPP has confirmed that the words “and the victim was in his or her care” will be highlighted to prosecutors. The following footnote will also be added: ‘For the avoidance of doubt the words “and the victim was in his or her care” qualify all of the preceding parts of this paragraph. This factor does not apply merely because someone was acting in a [professional] capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.’”

Paragraph 43.14 of the updated The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide now reads:

43. A prosecution is more likely to be required if:

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;

Footnote: For the avoidance of doubt the words “and the victim was in his or her care” qualify all of the preceding parts of this paragraph. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.