Former Lord Chancellor misrepresents law on assisted suicide in national newspaper

Yesterday the Care Not Killing Alliance wrote to Lord Falconer, the former Lord Chancellor (pictured), saying that we were declining his invitation to give evidence to his new Commission on Assisted Dying on the grounds that the commission was unnecessary, unbalanced and seriously lacking in transparency.

Foremost amongst these concerns was the fact that the vast majority of the members of Lord Falconer’s commission were well-known figures in the pro-legalisation lobby.

Amongst the eleven people initially invited to give evidence to the commission I understand that at least four others, apart from me (including Telegraph columnist George Pitcher), have also now declined.

Yesterday Lord Falconer launched his commission via the Times newspaper, with an article and video, and in so doing made some rather astonishing statements about the law as it currently stands.

Under the Suicide Act 1961, encouraging or assisting a suicide is a criminal offence carrying a custodial sentence of up to 14 years. But the law gives the Director of Public Prosecutions some discretion in deciding whether or not to prosecute in any given case. He must be satisfied both that there is enough evidence to bring a prosecution and also that it is in the public interest to do so.

The DPP was required by the Law Lords, in their judgement on the Debbie Purdy case, to publish his ‘public interest’ criteria and did so, after a public consultation, in February 2010.

These criteria are freely available on the Crown Prosecution Service Website. There are 16 criteria making prosecution more likely and 6 criteria making prosecution less likely.

They come into play only after it has been established that there is enough evidence to bring a prosecution.

In his video on the Times website (you will need a subscription to listen) Lord Falconer summarised the Director of Public Prosecutions’ policy on assisted suicide as follows (from 0.36-1.03):

‘The Director of Public Prosecutions, who is the chief prosecutor in this country, has laid out guidelines setting out when he will prosecute and when he will not prosecute. In summary, he won’t prosecute if somebody’s terminally ill or suffering from a severe disability which is incurable, if in sound mind they’ve decided they want to kill themselves and the person who helps them is doing it from the very best motives.’

In the article accompanying the video he describes it slightly differently:

‘The DPP’s guidelines specify that where someone is terminally ill or suffering from a serious and irreversible disability, then if the decision to commit suicide is made freely by him or her, and the assister is driven by good, loving motives, he will not normally prosecute. Eligibility is restricted only to those who are over 18, who have a settled intention to die and who are aided by someone who is motivated by compassion and not a healthcare professional.’

Lord Falconer’s oral and written statements above quite seriously misrepresent the DPP’s guidelines in two important respects.

First, he says in the video that the DPP’s criteria indicate ‘when he will prosecute and when he will not prosecute’. They actually do nothing of the sort as the DPP was at great pains to point out. The presence, or absence, of the various factors simply makes it more or less likely that a prosecution will be brought. Not only that, but each case must be decided on its own facts. For the DPP to make a rule of any of the factors would be ‘fettering his discretion’, which is unlawful.

Second, and more seriously, Lord Falconer includes ‘terminal illness or serious disability’ in the victim as factors making prosecution less likely. This is simply not true. The physical condition of the victim is irrelevant. In fact these criteria were removed from an earlier draft of the guidance as it was felt that they discriminated against sick and disabled people by removing legal protection from them.

Why might Lord Falconer, a former Lord Chancellor (a member of the Cabinet responsible for the efficient functioning and independence of the courts), misrepresent the law in this matter?

The first possibility is that he is simply not familiar with the DPP's prosecution criteria. If so, that would be rather astonishing, as surely an understanding of the intricacies of the law in this area, one would think, would be essential if one was to chair a commission examining that law. That would be, at very least, rather embarrassing.

The second possibility is that he is familiar with the criteria, but for some reason is deliberately misrepresenting them. That, of course, would be much more serious.

The Commission’s first evidence session took place today. We are told that ‘the meeting explored the current medical and legal landscape shaping people’s experiences of dying in the UK today’.

Amongst the witnesses, interestingly, was the DPP Keir Starmer.

We are told that full transcripts and a recording of the evidence will be published on the commission’s website as soon as they are available. It will be interesting to see whether the DPP was able, in giving his own evidence, to correct the former Lord Chancellor’s apparent misunderstanding of the very law that is the subject of his enquiry.