Fuentes clave de incertidumbres en las estimaciones

It is worth restating the “help me die” claim (set out in 1.3.3), where S is the suicidal claimant, O is an official empowered to interfere, E is the person enabling the suicide:

S wishes to die but is unable to do so in the way he chooses. He claims that O should not interfere when E provides the requisite assistance with his suicide.

The following discussion seeks firstly to develop an account of the procedural account of the government’s responsibility to secure the Article 8 right to dignified suicide in English law referred to in chapter 3 (see 3.6.3). This initial statement of the law will omit the involved legal reasoning as regards the characterisation of the Article 8 right (the various plausible

38R v SSHD ex parte Simms [1999] 3 WLR 328.

interpretations of the Convention right to enabled suicide was discussed in chapter 3) and will also omit customary discussion of detailed legal requirements primarily pertaining to the

“take my life,” “end my suffering,” “let me die” situations despite possible overlap between such requirements and those pertaining to assisted suicide. The reason for the omission of discussion of legal requirements pertaining to the other situations is because a developed account of the law governing those situations is more readily achievable by dealing with these separately later in the thesis.⁴³ The various strands of judicial reasoning in the Pretty and Nicklinson cases will then be analysed to determine whether they approach the issue of proportionality in relation to the Article 8 right to dignified suicide compatibly with the generic right to enabled suicide under the PGC. The section will come to a final conclusion as to the proportionality of current law, taking the Supreme Court findings into account, in terms of the generic right to enabled suicide.

Before addressing the responsibility of the English State, as recognised by the Supreme Court, to secure the Article 8 right to dignified suicide as relevant to “help me die” claims, it is useful to outline, in brief, the nature of the prohibition on ‘assistance’ in another’s suicide under s2(1) the Suicide Act. Section 2(1) covers a broad range of actions that the enabler (E) makes to assist S’s purpose, as long as that purpose fits the legal definition of committing suicide (chapters 7 and 8 delineate two instances in which the legal definition of suicide deviates from the concept used in this thesis). Of particular relevance is the fact that the scope of the offence encompasses direct involvement in the acquisition and delivery of lethal medication, as requested by S in the “help me die” situation;⁴⁴the proscribing of delivery of medication to the suicidal individual has been found to extend to delivery of the suicidal individual to the lethal medication.⁴⁵ It should be noted that the offence may also be committed even where there is in fact no suicide, nor even an attempt to commit it (s2(1)(B)).

Section 2(1) was amended in 2009 by the Coroners and Justice Act 2009; the Court of Appeal in Nicklinson⁴⁶ confirmed that the changed wording would not alter the substantive interpretation of the law prior to the passing of the Act (relevant to the scope of enabling in

43The analysis of the legal requirements in the thesis is structured as follows: “take my life” is 6.3 above; “end my suffering” is considered in chapter 7; “let me die” is considered in chapter 8.

44Re Z (Local Authority) [2004] EWHC 2817 (Fam) [14].

45 A combination of arranging, informing, supporting, and physically assisting the suicidal agent so that another/organisation may procure the lethal medication, as in Re Z.

46R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961.

terms of this thesis).⁴⁷ The Suicide Act s2(1) has not been subject to successful legal challenge under the HRA mechanisms of the s3 interpretative obligation or declaration of incompatibility (s4) since the Pretty v UK⁴⁸ judgment; nor have parliamentary committee findings that the Statute should be modified to be brought into line with the ECHR been heeded so far (JCHR 2004, 3.10), although the Assisted Dying Bill 2014-15, if successfully passed, would bring about some measure of compliance (see 9.5).

The morally/legally controversial and unusual status of the offence of encouraging or assisting a course of conduct, committing suicide, that is not itself an offence, was recognised contemporaneously with the passing of the Suicide Act 1961.⁴⁹ The basis for retaining the offence of assisting and encouraging has been repeatedly found to be the protection of the

‘vulnerable’.⁵⁰ However, the statute anticipates that even where prosecutors can be satisfied that the evidential ingredients of the offence are fulfilled (threshold, or evidential test) it may not serve the aim of protecting the vulnerable to prosecute in certain circumstances, and to this end it requires the consent of the DPP to prosecute, by s2(4).⁵¹English judges have noted of the offence of assisting/encouraging suicide that ‘[i]n terms of gravity it can vary from the borders of cold-blooded murder down to the shadowy area of mercy killing or common humanity’.⁵² A category of potential defendants (clearly within the offence) who assist in the suicide of a dependent who is not clearly ‘vulnerable’ and with whom they are intimate are not convicted and are rarely investigated (see 6.5). The fact that the offence purports to proscribe a broader range of assisting/encouraging behaviour than legal officials should deem to be harmful and worthy of prosecution has been established in terms of sentencing for the offence, and was reaffirmed by their Lordships in the Purdy case (below).⁵³ It was the non-prosecution of a category of defendants who assist non-‘vulnerable’ dependent intimates which forms the context to the challenges to the Suicide Act s2(1) and s2(4) mounted in Pretty,⁵⁴Purdy⁵⁵and Nicklinson.⁵⁶

47Ibid [21] referring to para 327 of the Explanatory Notes.

48Pretty v UK (2002) 35 EHRR 1.

49Eg HL Deb 02 March 1961 vol 229 col 254 per Lord Silkin.

50R (Pretty) v DPP (2001) EWHC 788 [54]; R (Nicklinson) v Ministry of Justice [2014] 3 WLR 200 [63]–[66].

51An interpretation confirmed by the House of Lords in Purdy R (Purdy) v DPP [2009] UKHL 45 (HL).

6.5 The government’s procedural responsibility: clarity of prosecutorial policy; the role