Consultation on public interest guidance for suicide pact and ‘mercy killing’ type cases

Outcomes

Summary of Responses to the Public Consultation on public interest guidance for suicide pact and ‘mercy killing’ type cases

Introduction

1.1    This is a summary of responses to the public consultation undertaken by the Crown Prosecution Service (CPS) on relevant public interest factors when considering a death arising from a suicide pact or a so-called ‘mercy killing’. It highlights the changes made to the guidance following the public consultation. The updated homicide prosecution guidance, containing the revised public interest factors, has now been published.

1.1    It was proposed that a new section is added to the current ‘Homicide: Murder and Manslaughter’ guidance. The proposed revisions were published on 14 January 2022 and consulted on for a period of twelve weeks, ending 9 April 2022.

1.2    The purpose of the consultation was to inform the development of new and complex policy by testing it with a range of interested persons. We have used it to reflect on our proposed approach, to check for opportunities for amendments, improvements and changes. We are grateful to all those who took the time to consider the draft guidance and send in their views.

1.3    The primary audience for CPS prosecution guidance is our prosecutors. We regularly review and update our guidance to ensure it supports them. Crown Prosecutors apply the Code for Crown Prosecutors when making the decision to prosecute or not prosecute. It has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied. It is important that Prosecutors are given the clearest possible additional guidance in specific instances, including where the public interest decision is complex and sensitive. The police, who apply the Code when exercising their own judgment as to whether they consider a case should be prosecuted and, if so, referring it to the CPS for a charging decision, also need guidance to ensure a fair and consistent approach to these cases. The revised guidance, building on the consultation responses, seeks to set out these specific considerations openly and transparently.

Method of Analysis and General Observations

2.1    The Consultation posed 9 questions and received 1271 responses.

2.2    All responses were reviewed. A thematic analysis of each set of paired questions, 1 to 8, was conducted to capture the broader issues which need to be considered when identifying changes to the draft guidance. It is not possible to address every point made in the consultation exercise in this summary, however, we have sought to capture the key points made. We focused on responses which disagreed with the suggested approach and identified risks associated with the approach, particularly where alternative wording or approaches were suggested.

2.3    The rationale provided for ‘Yes’ or ‘No’ answers highlighted some consistent themes across the paired questions. These included:

• Polarised views in support of, or critical of a perceived reduction of the deterrent effect of the draft guidance. 
• Polarised views on whether it was appropriate to draw on similarities with the assisted suicide guidance. 
• Calls for clarity and/or guidance around definitions, defences and the credibility or reliability of evidence relied upon to support this complex public interest decision.
• Polarised views on whether the draft guidance risked discriminating against vulnerable people. 
• Polarised views on whether terminal illness should be a factor tending against prosecution.
• Polarised views on whether the right to choose the manner and timing of death is relevant to the public interest assessment.
• Whether the guidance sufficiently considers the availability or lack of palliative care.
• Calls for additional guidance on suicide pacts. 
• Whether it is possible for prosecutors to make objective assessments of on certain factors.

2.4    The Totals of ‘Yes’ and ‘No’ responses are shown against the respective questions below. It should however be noted that a number of responses were raised in the same terms and had adopted published pro-forma responses.

2.5    Some responses fell outside the scope of the consultation. These included:

• requests for legislative change including calls for assisted dying legislation. 
• requests for specific guidance for police investigations to ensure that they proceed in line with the draft guidance. 
• requests for a review and refresh of the assisted suicide guidance. 
• submissions based on misunderstandings of the law and a misconception about the role of the CPS, police and Code for Crown Prosecutors.

Q1 and Q2: Pair 1

3.1    Q1: Do you think that the categories of cases to which these additional factors apply are appropriate? YES 738/NO 495. Q2: Can you expand on your answer to Q1?

3.2    The majority of narrative responses to question 2 did not focus on the categories of cases to which the guidance should apply. They included wider commentary on the issue of assisted dying and suitability of the guidance, so we adopted a broader approach to analysis of the narrative response. ‘Yes’, responses were generally supportive of the draft guidance but their rationale varied. Many responses suggested that the changes respected autonomous choice (that being the right of a person to determine the timing and manner of their death), promoted high quality decision-making, recognised a compassionate motive and would ensure public confidence in the decisions of prosecutors. Some, erroneously, thought that the draft guidance compensated for the lack of an assisted dying law in the UK.

3.3    ‘Yes’, responses included an observation that the draft guidance introduced a reasoned and humane discretion in reaching decisions as to the appropriateness of prosecution in such sensitive cases. In this regard they generally criticised the approach in the current guidance which states “subject to sufficiency of evidence, a prosecution is almost certainly required, even in cases such as ‘mercy killing’ of a sick relative.” In welcoming the draft guidance, some respondents shared painful experiences of watching loved ones suffer.

3.4    ‘No’ responses were generally critical of the draft guidance. Many respondents thought that guidance must not detract from the clear position that prosecution of homicide is ‘almost certainly’ required in the public interest where there is sufficient evidence. Some respondents suggested that there should be a presumption in favour of prosecution. Some respondents felt that the tone of the guidance was inappropriate and risked creating the perception this was an attempt to decriminalise euthanasia. Some respondents commented the change could be erroneously read as providing tacit approval to undertake a ‘mercy killing’ which contradicted the will of Parliament. It was suggested that no prosecution guidance should leave the impression that ending the life of another is anything less than an extremely serious crime. They suggested that prosecution guidance should not be seen by society as permitting the killing of loved ones no matter that it has caveats.

3.5    Certain themes identified in responses to this question were repeated in answers to other questions in the consultation and are addressed in response to those questions. They included:

• A belief by the offender that the murder was ‘an act of mercy’ is a mitigating factor relevant to sentence for murder (Schedule 21, para 10(f) of the Sentencing Act 2020) and should not be relevant consideration in a public interest decision. 
• Concerns were expressed that compassion is a subjective notion, the law must protect the vulnerable and that guidance should not detract from this. Concerns were raised particularly on the consequential impact on older and disabled victims. 
• Respondents observed that these changes were not invited by the Court, as in provision of the assisted suicide guidance, therefore, the CPS should act cautiously in extending to these categories. 
• Respondents highlighted the right to life enshrined in the European Convention on Human Rights and their views that murder cannot be deemed to be merciful. Reference was made to the 1999 Council of Europe recommendation that “a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person… (and) cannot of itself constitute a legal justification to carry out actions intended to bring about death”.
• the risk that the guidance could be abused because vulnerable individuals can be subject to coercion, fear, emotional abuse and fear of becoming a burden. 
• the availability of palliative care should be a factor tending in favour of prosecution although others thought that the lack of availability should be a factor tending against prosecution. 
• a call from some respondents for the guidance to be restricted so that it applies only to those who were terminally ill.

Amendments to the guidance following consultation

3.6    It is not a defence to murder that the victim exercised a clear, informed and settled choice to consent to their killing. It is important to reiterate that the guidance cannot and does not provide any assurance that a person will be immune from prosecution if he or she does an act that ends the life of another person. To amplify this position and address the perception risk highlighted by respondents, the guidance now states that ‘a prosecution for murder, in particular, but also manslaughter, is almost certainly required in the public interest’. This is similar to the wording in the original guidance and reflects the fact that the harm and culpability will inevitably be of the utmost seriousness.

3.7    The Code for Crown Prosecutors sets out the factors relevant to determining whether a prosecution is in the public interest. Prosecutorial discretion allows compassion to play its part in the criminal justice response to wrongdoing. This is a valuable safeguard, enabling the prosecutor to consider the entire background of the case and ensures that prosecutions are not brought in inappropriate circumstances. The additional factors in the new guidance provide a framework for prosecutors to assess the public interest in these fact specific, complex and sensitive cases. Our prosecution guidance supports prosecutors to make effective Code compliant decisions in all cases, thereby helping to ensure the delivery of justice. Its application ensures predictability and consistency of decision-making.

3.8    Additionally, the application of the guidance to suicide pact cases more generally was restricted as suicide pacts are recognised in statute as providing a partial defence to murder. The additional public interest factors apply only to so called ‘mercy killings’ and suicide pacts cases in the context of ‘mercy killings’. The application of the statutory partial defence (section 4 Homicide Act 1957) is addressed separately in the Homicide: Murder and Manslaughter prosecution guidance.

Q3 and Q4: Pair

4.1    Q3: Do you agree that the factors considered should be broadly consistent with those set out in the assisted suicide policy? YES 739/NO 484. Q:4 Can you expand on your answer to Q3?

4.2    ‘Yes’ responses mostly agreed that the guidance should be broadly similar, noting that the circumstances and motives are similar. However, the rationale for their views differed. Some respondents indicated that their fear of prosecution was reduced by the draft guidance as it enables compassionate motives to be accounted for in any public interest decision to prosecute. Other responses highlighted the importance of individual choice in the time and manner of death and referred to the legal risk and prohibitive cost of travel to Switzerland for assisted dying support.

4.3    ‘No’ responses included strong observations that assisted suicide cannot and should not be compared with homicide. They recommended that the guidance needed to clearly distinguish between the fact that one involves taking one’s own life and the other taking another’s life. Respondents commented that the offences were very different and not suitable for comparison. It was observed that prosecution rates for assisted suicide are perceived as low and that adopting a similar approach for homicide would risk a similar effect in these cases. Additionally, it was highlighted that factors relevant to sentence should not be determinative of the decision to charge.

4.4    It was observed that two factors showed a confusion between homicide and suicide. Proposed factor 1 against prosecution is that ‘the victim had reached a voluntary, clear, settled and informed decision to end their life’. However, in homicide cases the victim does not ‘end their life’ but is killed by someone else. Similarly, it is not that the suspect acts ‘in the face of a determined wish on the part of the victim to end their life’ (proposed factor 4) as the victim does not ‘end their life’ but only requests that it be ended. It was suggested that a more relevant factor was seen as reluctance specifically in the context of circumstances of extreme pressure on the suspect of a kind that would significantly diminish their responsibility.

4.5    Some respondents observed the importance of protecting vulnerable people. It was suggested that CPS must ensure that those living with disabilities and older individuals have equal protection under the law and must never risk entrenching prejudices within society regarding the value of disabled or elderly people’s lives. They highlighted that individual who is sufficiently “physically unwell and unable to undertake the act” would likely also be unable to resist or fend-off an assault on their person. In contrast, others observed that people with a disability or severe illness may be unable to end their own life without assistance. Therefore, the CPS guidance on "mercy killings" should be similar to the assisted a suicide guidance and recognise compassionate motives, to avoid discriminating against the vulnerable.

Amendments to the guidance following consultation

4.6    The guidance draws clear distinction between homicide and assisting or encouraging suicide offences by setting out the nature and seriousness of the offences, parliamentary intention and the relative maximum sentences available. The guidance clearly states that it is murder for a person to do an act that ends the life of another, intending to kill them, even if they do so on the basis that they are simply complying with the wishes of the other person concerned.

4.7    The guidance provides additional advice to prosecutors on the application, evaluation and relevance of the factors with reference to the guidance in the Code for Crown Prosecutors.

4.8    Factors 1 and 4 tending against prosecution have been amended to clarify that the victim wished for their life to end.

4.9    This guidance has been drafted to assist prosecutors in applying the relevant factors when exercising their prosecutorial discretion in assessing the public interest. The evidential stage of the Full Code Test and the public interest stage are separate. The public interest stage cannot be considered until the evidential test is met. Therefore, the public interest factors cannot and do not apply when considering the evidential stage of the test. Whether the victim was physically able to undertake the act to end their life is significant in the application of the public interest guidance to the selected categories of cases.

4.10    An additional factor (4) that the victim was physically able to undertake the act to end their own life has been added as a factor tending in favour of prosecution. This factor recognises that the victim had a choice and is necessary because it is very unlikely that murder could be described as an act of mercy where the victim was physically able to undertake the act themselves. The factor tending against prosecution has been retained and amended to read “the victim was not physically able to undertake the act to end their own life”.

4.11    The guidance recognises that certain circumstances should be reflected as mitigation in a sentencing exercise. The guidance states that “Prosecutors should then take a step back and look at the case in the round. In particular, even if there are public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.”

4.12    In order to address the concerns that guidance may increase risk to those who are vulnerable due to physical or mental illness, age or disability, the following changes were made to the guidance following the public consultation:

• The application of the guidance has been restricted to specific categories of cases (‘Mercy killings’ and suicide pacts in the context of ‘mercy killings’) and the seriousness of homicide offences has been highlighted. 
• The importance of pursuing all reasonable lines of enquiry to establish and, where possible, provide independent verification of the suspect’s account was included in the draft guidance. In addition, the published guidance now makes clear that prosecutors must consider the factors objectively and assess the credibility and reliability of any accounts and the relevant weight to be attached to them.
• Further guidance has been provided to assist prosecutors when determining whether a victim reached a clear, settled and informed decision that they wish for their life to end. This factor includes reference to other vulnerabilities that may impact on their ability to reach such a decision. 
• The guidance explicitly recognises that vulnerable victims may be more susceptible controlling or coercive behaviour and to being unduly influenced to view themselves as a burden.
• A new factor regarding influencing the victim against seeking or denying treatment, advice or care has been included.

Q5 and Q6: Pair 3

5.1    Q5: Are there any further factors in favour of prosecution that should be included? YES 173/NO 812. Q6: What further factors in favour of prosecution should be included if you replied 'Yes' to Question 5?

5.2    ‘Yes’ responses necessitated a narrative explanation of additional factors. Some ‘Yes’ responses suggested further factors to address a perception that the draft guidance would result in fewer prosecutions. Respondents interpreted the question differently, ‘no’ responses to this pair did not only indicate support of the guidance, this was evident by reviewing the corresponding response to pair 1. Some provided ‘no’ responses because they wanted the original guidance to remain in place while others responded no to indicate their support of the factors listed in the draft guidance. Therefore, it was not appropriate to rely on a quantitative analysis to assess the factors.

5.3    Some respondents proposed specific additional factors while others raised issues that ought to be considered. These included:

• Evidence of long-term planning of the death.
• that the suspect was involved in more than one death or helped more than one unconnected victim. 
• Evaluation and treatment by qualified medical professional to be incorporated in guidance. 
• Victim denied access to medical assistance and treatment.
• The availability of palliative care. Some respondents suggested failing to utilise palliative care should be a factor tending in favour of prosecution. A factor suggested in favour of prosecution was ‘where access to care and support, including palliative care and end of life care, was denied or limited to the victim by the suspect’.
• The suspect publicly expressed views on the issue of assisted dying.
• Issues relating to the mental health of the victim over and above the issue of capacity. These included increased vulnerability due fluctuating health mental health conditions and the need for independent expert assessments. 
• Coercion, exploitation or abuse of vulnerabilities. Respondents suggested that it would be very difficult to determine the motivations of those involved in killing vulnerable persons, especially if the victim cannot confirm these. Their very vulnerability means that they would be in a weak position and open to persuasion and coercion in this matter, including feeling a burden on those caring for them. 
• It was suggested that Factor 9 should be expanded as follows ‘the suspect received a financial or other reward for their actions.’ Financial was seen as quite narrow in focus and should be broadened when considering public interest factors. 
• The absence of efforts by the suspect to counsel or intervene and divert thinking away from death. Suggestions included suspect not seeking independent or/and expert help to dissuade the wish by the victim to end their life was also put forward as a factor.
• Additional factors against prosecution included that the suspect took reasonable steps to ascertain that the victim had communicated clearly and independently their wish to end their life to another responsible person or persons, for example a trusted person in an independent therapeutic role or trusted and trustworthy friend or relative.

5.4    Some responses repeated factors similar to those already contained within the proposed guidance. Others queried why other factors from the assisted suicide guidance which tend in favour of prosecuting assisted suicide that were left out of the draft guidance. These include factor 12 (the suspect gave encouragement or assistance to more than one victim who were not known to each other), factor 15 (the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present); and factor 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.). There was a call for the guidance to go further and set out factors which, if they exist, would require prosecution as a certainty rather than as an “almost certainty”.

Amendments to the guidance following consultation

5.5    Certain factors or themes suggested by respondents, such a planning, are relevant evidential considerations or amount to information that could be relied upon in support of the application of a public interest factor. Care has been taken to provide more guidance on the correct approach for evidential considerations including the importance of independent verification of the suspect’s account. The Code for Crown Prosecutors provides additional guidance to inform a prosecutor’s objective assessment of the evidence which will, necessarily, be case specific.

5.6    Given the distinction between this guidance and the assisted suicide guidance, it was not relevant or appropriate to include all the factors from that guidance.

5.7    The approach suggested of setting out factors which, if they exist, would require prosecution as a certainty, is seen as not compatible with the Code for Crown Prosecutors and importance of prosecutorial discretion. It has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied.

5.8    Additional guidance has been provided to prosecutors when assessing the victim’s state of mind. Factor 3 tending in favour of prosecution and factor 1 tending against prosecution have been expanded to recognise the impact of pressure, control, coercion, vulnerabilities relating to fluctuating mental health conditions and access to treatment/support.

5.9    The guidance now recognises that vulnerable victims may be more susceptible to being unduly influenced to view themselves as a burden (factor 7 in tending in favour of prosecution).

5.10    An additional factor tending in favour of prosecution (13) has been included. This factor addresses concerns that the suspect may have influenced the victim not to seek medical treatment, palliative care and/or independent professional advice or denied access to such treatment, care and/or professional support.

5.11    Factor 9 tending in favour of prosecution has been amended to state that the suspect was motivated by a financial or other reward/benefit for their actions.

Q7 and Q8/Pair 4

6.1    Q7: Are there any further factors tending against prosecution that should be included? YES 642/No 330. Q8: If so which? What further factors tending against prosecution should be included if you replied Yes to question 7?

6.2    Broadly ‘No’ responses to Q7 did not support the draft guidance. Some respondents disagreed that there should any be factors tending against prosecution and suggested that such factors undermine the law.

6.3    ‘Yes’, responses to Q7 suggested factors many of which were variations of factors already within the proposed guidance. Some respondents proposed specific additional factors while others raised issues that ought to be considered. These included:

• Terminal illness to be added as a factor tending against prosecution such as “the victim was terminally ill and in extreme pain.” These responses generally reflected a view that there is a difference between shortening death to relieve distressing and painful circumstances and shortening life (where a person is not dying and is given help to die). 
• Additionally, there were calls for the application of guidance to be restricted to those suffering from a terminal illness. 
• Concerns were raised that those suffering from terminal illness are discriminated against because may not be able afford the cost of travel to Switzerland to access assisted dying. 
• The lack of availability of adequate palliative care. 
• The suspect posed no risk to others. 
• The suspect sought to dissuade the victim.
• There was evidence or a written record of the deceased’s wishes.

Amendments to the guidance following consultation

6.4    As above, certain factors or themes suggested by respondents, such a written record of wishes, are relevant evidential considerations or amount to information that could be relied upon in support of the application of a public interest factor.

6.5    Terminal illness is not included as a factor tending against prosecution nor was it considered appropriate to restrict the application of the guidance to those suffering from a terminal illness. It was not considered appropriate to define terminal illness which could cover a range of diagnosis with varying prognosis. Expert medical evidence would be required to support such a finding and it is not appropriate to fetter prosecutorial discretion when the question of compassion may apply in a range of cases on their particular facts and circumstances.

6.6    A factor tending in favour of prosecution has been added where the suspect influenced the victim not to seek medical treatment, palliative care and/or independent professional advice or denied access to such treatment, care and/or professional support. It was not considered necessary to include a factor tending against where this support was provided. However, factor 4 has been amended to reflect the fact that the suspect acted under significant emotional pressure due to the victim’s wish for their life to end. This factor reiterates the importance of independent verification.

6.7    Factor 5 tending against prosecution has been amended to state that the suspect made a genuine attempt to take their own life at the same time. This is intended to address concerns that the guidance may be abused by unscrupulous offenders.

Question 9

7.1    Please provide any other feedback you wish to share around how the revised guidance could be improved?

7.2    The feedback provided in response to this question was wide ranging and captured under the following categories: suggested general improvements, risks and additional factors or comments on factors tending in favour or against prosecution.

7.3    Some respondents suggested that the guidance should provide clarity around the application of suicide pacts in the context of this guidance. As a suicide pact provides a statutory partial defence to murder, respondents queried whether it should appear as a factor. The definition of a suicide pact at Section 4(3) of the Homicide Act 1957 is incorporated into the guidance. The guidance now only applies to suicide pacts that occur in the context of a ‘mercy killing’. The public interest factors are not relevant to other suicide pact cases, for example, involving cults or online suicide pacts. The reference to suicide pacts has been removed from factor 5 tending against prosecution.

7.4    Some respondents suggested that there should be additional guidance on the credibility and reliability of the evidence required to demonstrate the applicability of the factors. Respondents suggested that it would be challenging for prosecutors to make objective judgements about the true wishes and intentions, and to detect undue influence. Prosecutors regularly make assessments relating to the state of mind of the suspect when considering whether the mens rea for an offence is made out. However, additional guidance regarding these issues have been incorporated into the guidance to assist prosecutors in applying and evaluating the factors.

7.5    Some respondents suggested the need for equivalence in the factors tending in favour and against. The guidance makes clear that the public interest factors are not exhaustive, however, equivalence was not deemed to be necessary. Prosecutors are advised to evaluate the factors in accordance with the Code for Crown Prosecutors. Each case will turn on its unique set of facts and circumstances, therefore, an evaluation of each individual factor (including whether it applies or not) and the weight to be attached to will be fact and case specific.

7.6    Some respondents raised concerns about making changes to the guidance where there is very limited available data due to the small numbers of cases. The CPS regularly reviews and updates our prosecution guidance to ensure it supports our prosecutors. A review of the Homicide guidance identified that further direction could be provided to assist prosecutors with the application of the public interest test. The importance of additional guidance for specific offences and categories of casework was highlighted in the decision of the House of Lords in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL45, which required the DPP "to clarify what his position is as to the factors that he regards as relevant for and against prosecution" (paragraph 55) in cases of encouraging and assisting suicide. Additional changes have been made to the guidance which do not fall within the scope of this consultation exercise. These include guidance on drafting indictments, cases where the conduct of a suspect, especially in a domestic abuse context, may have led to their suicide and the law on causing or allowing the death or serious injury of a child or vulnerable adult

7.7    The guidance includes requirements for referral of cases for senior oversight. Authority to charge or take no further action must be given by the Chief Crown Prosecutor (personally). The Directors of Legal Services must approve the decision before it is communicated. This referral process will ensure that the quality and consistency of prosecutorial decision making in accordance with the revised guidance.

7.8    Additionally, the CPS will record, for publication on an annual basis, the number of decisions made in respect of this part of the guidance.