STRAIN

Date: 2022-01-18

The Crown Prosecution Service (CPS) is seeking views on a proposed update to legal guidance on homicide, to assist prosecutors considering the public interest when dealing with suspects in deaths arising out of failed suicide pacts and so called ‘mercy killings’.

A 12-week consultation began on Friday, 14 January and will end on Friday, 8 April.

The consultation details a number of ‘public interest factors’ that will need to be considered when deciding to bring a prosecution in such cases.

A prosecution is more likely to be required if:

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 end their life;
3. the victim had not reached a voluntary, clear, settled and informed decision to end their life;
4. the victim had not clearly and unequivocally communicated their decision to end their life to the suspect;
5. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim;
6. the suspect pressured the victim or did not take reasonable steps to ensure that any other person had not pressured the victim;
7. the suspect has a history of violence or abuse against the victim;
8. the suspect was unknown to the victim;
9. the suspect received a financial reward for their actions;
10. the suspect deliberately used excessive violence or force causing unnecessary or prolonged suffering;
11. 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. [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.]

A prosecution is less likely to be required if:

1. the victim had reached a voluntary, clear, settled and informed decision to end their life;
2. the suspect was wholly motivated by compassion;
3. the victim was seriously physically unwell and unable to undertake the act;
4. the actions of the suspect may be characterised as reluctant, in the face of a determined wish on the part of the victim to end their life;
5. the suspect attempted to take their own life at the same time, in pursuance of a suicide pact;
6. the suspect reported the death to the police and fully assisted them in their enquiries into the circumstances and their part in it.

Although not an exhaustive list these factors and others will be considered when applying the public interest test in cases where prosecutors are satisfied there is sufficient evidence to provide a realistic prospect of conviction.

The proposed update to the legal guidance on murder and manslaughter does not decriminalise any offences, and a suspect is not immune from prosecution if they claim it was a ‘mercy killing’ or failed suicide pact. The guidance does not touch on ‘assisted dying’ or other similar scenarios which are treated separately in law.

Director of Public Prosecutions Max Hill QC said:

“Suicide pacts and so-called mercy killings are tragedies for the family and friends of those involved.

It is a sensitive and emotive topic which can be very divisive and provoke strong views, but our prosecutors may need to decide whether the legal test for criminal charges has been met. The individual circumstances of every case must be carefully weighed up when considering whether it is in the public interest to charge.

It is important that we clearly lay out the reasoning behind our decision-making, and we are seeking views on a range of factors which would be considered when determining whether it is appropriate to prosecute.

But let me be clear that these are extremely serious cases. We will always prosecute cases of murder and manslaughter where there is sufficient evidence and it is in the public interest.”

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk

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