[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kenward & Anor, R (On the Application Of) v The Director of Public Prosecutions & Anor[2015] EWHC 3508 (Admin) (04 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3508.html Cite as: [2015] EWHC 3508 (Admin) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE WILKIE
MR JUSTICE CRANSTON
____________________
THE QUEEN (on the application of NICOLA KENWARD and MERVIN KENWARD |
Claimants |
|
- and - |
||
THE DIRECTOR OF PUBLIC PROSECUTIONS HER MAJESTY'S ATTORNEY GENERAL FOR ENGLAND AND WALES - and- AM |
1st Defendant 2nd Defendant Intervener |
____________________
John McGuinness Q.C. (instructed by Crown Prosecution Service) for the D.P.P.
James Eadie Q.C. and Louis Mably (instructed by the Government Legal Service) for the A.G.
Adam Sandell (instructed by Leigh Day) for AM
Hearing date: 16 November 2015
____________________
Crown Copyright ©
Sir Brian Leveson P :
"(a)… does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) [his or her] act was intended to encourage or assist suicide or an attempt at suicide."
The Factual Context
Legal context
"The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPP's prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service ("CPS"), it would have prevented the police prosecuting without the consent of the DPP)." (See para. 39)
"Of 85 cases referred to the CPS between 1 April 2009 and 1 October 2013, 64 were not proceeded with and 11 were withdrawn. 9 are ongoing and only 1 has been successfully prosecuted. The Director's discretion is evidently effective to avoid prosecutions which would serve no useful purpose after the event…".
"Nothing in [the policy] can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that encourages or assists the suicide or the attempted suicide of another person".
"Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed."
1. the victim was under 18 years of age;
2. the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;
3. the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;
4. the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;
5. the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;
6. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;
7. the suspect pressured the victim to commit suicide;
8. the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;
9. the suspect had a history of violence or abuse against the victim;
10. the victim was physically able to undertake the act that constituted the assistance him or herself;
11. the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;
12. the suspect gave encouragement or assistance to more than one victim who were not known to each other;
13. the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
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;
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;
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.
"On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.
1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
2. the suspect was wholly motivated by compassion;
3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
6. the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
Nicklinson
"Para 43(14) is particularly problematic. How does it apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care. In short, we accept the submission of Mr Havers that the Policy does not provide medical doctors and other professionals with the kind of steer… that it provides to relatives and close friends acting out of compassion".
"185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.
186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy… deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the 'victim' to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable AM, or anyone who assists him, to make an informed decision about the likelihood of prosecution."
"The Lord Chief Justice does not accept that the guidance creates the uncertainty which we have identified. He believes that it is tolerably plain that if a social worker acts out of compassion, he or she will not be prosecuted even if paid for providing the service since the purpose of paragraph 43(13) is to deal with "profiteering". However, the helper could not be the social worker or carer who has had the responsibility for caring for the victim since he or she is in a position of trust. This might be the proper construction of the guidelines, but we cannot, with respect, feel confident that it is. Clearly AM's lawyers and social workers are not confident that it is; and nor were the members of the Falconer Commission. If the DPP intends to convey the message as the Lord Chief Justice understands it, we see no reason why it should not be spelt out unambiguously."
"For the reasons given by Lord Dyson MR and Elias LJ, I do not agree with Lord Judge CJ that one can spell out of the 2010 Policy the approach which he sets out so clearly in those two paragraphs [i.e. 185 and 186 of his judgment]".
"On its face, it discloses a much more general principle that the professional character of an assister's involvement is in all circumstances a factor tending in favour of prosecution, although one whose weight will vary (like all the listed factors) according to the circumstances".
"However, the important point for present purposes is that what is said in those two paragraphs [of the judgment of Lord Judge] represents, according to her counsel on instructions, the view of the DPP herself, as to the appropriate policy. If the DPP's policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a "public authority", to ensure that the confusion is resolved.
144. However, I am of the view that it would not be appropriate, at least at this stage, to make an order which would require the DPP to amend the 2010 Policy. Rather, I think, it is appropriate to leave it to her to review the terms of the 2010 Policy, after consultation if she thinks fit, with a view to amending it so as to reflect the concerns expressed in the judgments of this Court, and any other concerns which she considers it appropriate to accommodate …
148 … (e) In common with all members of the Court, I do not consider that the Court should involve itself with the terms of the DPP's policy on assisted suicide, albeit that I would expect the DPP to clarify her policy."
"Counsel for the Director accepted… that… Lord Judge CJ's judgment correctly represented her policy. If this is so, and if, as I consider, the published policy says something different, then it is clear that the [DPP] is bound to resolve the inconsistency one way or another".
The October 2014 amendment
" 3.7 On reflection, the CPS believes that the emphasis of this factor should be around any healthcare worker who has the victim in his or her care. The fact such a person encourages or assists the suicide of the victim, whilst acting in that capacity, should be a factor in favour of prosecution.
3.8 The CPS considers that this factor should be extended to any person in a similar position of authority …"
"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; [1]
…
Footnote [1]: 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 [43.14]. 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."
"I have considered whether there is a risk that making this amendment, to one factor, could in any way make the guidance as a whole incoherent. I am satisfied that it will not do so …
The change I have decided to make will not mean that additional suspects will be 'covered' by this factor, in the sense of being entitled to expect that they would not be prosecuted. It merely means that some of those who might currently wonder whether this particular factor, in favour of prosecution, would apply to them can be assured that it would not. … I am satisfied that clarifying the circumstances in which a particular public interest factor in favour of prosecution will not apply does not materially change the guidance."
"…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. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPP's policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently… it would not be right for a court in effect to dictate to the DPP what her policy should be." (Para. 141)
"But for present purposes the decisive consideration is that it is a matter for the Director and not for us to decide whether to adopt Lord Judge's interpretation of the policy and if so how and how far to do so."
Requirement to review relevant material and consult
Requirement to consult the Attorney General
"The Attorney General is not consulted about the generality of prosecutors' guidance, but is consulted and informed in a timely way about any proposed statement of guidance which raises difficult or sensitive questions of law or public policy."
Conclusion
Mr Justice Wilkie :
Mr Justice Cranston :