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26 September 2011

Between the devil and the deep blue sea: suicide law revisited

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This year marks the centenary of the birth of playwright Terence Rattigan, whose play The Deep Blue  Sea has been revived at Chichester.  This month saw the Director of Public Prosecutions defending himself against the charge of having a blanket ban on cases of assisting another person to commit suicide. The heroine of Rattigan’s play, the estranged wife of a High Court judge, reminds us that until the late 1950s it was a crime to attempt suicide, and prosecutions did occur.

From the thirteenth century, suicide was a common law offence in England. Survivors of suicide attempts were prosecuted, buried as outcasts and, up until 1822, property could be forfeited to the Crown.  In Roman times, the Emperor Hadrian even dictated that soldiers committing suicide would suffer capital punishment.  Today, suicide is a major problem in Japan where traditional samurai teaching views suicide as a noble act.

Englishmen imprisoned for attempting suicide include: 59 year old Lionel Churchill who was sentenced in 1956 to six months after being discovered lying next to the decomposing body of his wife, having survived shooting himself in the head; labourer Thomas McCarthy, 28, who “drank something bad” on the steps of St Paul’s Cathedral after becoming depressed and was sent to prison for a week  in 1923; and Lieutenant Commander Geoffrey Walker, 48, who in June 1953 was fined £25 for attempting suicide with a French revolver he found on a beach at Dunkirk.

According to The Times in 1956, of 5,387 attempted suicides known to police, 613 were prosecuted of which 33 were imprisoned.

The change in attitude seems to have been gradual rather than driven by any particular event.  Possible factors include an increasingly secular society and a greater regard for the medical profession, and in particular a better understanding of mental health issues. As the figures above suggest, most of those prosecuted were discharged or sentenced leniently. Notably, Newgate hangman John Ellis was bound over for 12 months in 1924 after shooting himself in the jaw (although he would go on to kill himself in 1932).

The Homicide Act 1957 introduced the failure of a suicide pact as a defence, reducing murder to manslaughter. By 1959 the British Medical Association, Magistrates’ Association and the Church of England had all called for a change in the law. St Pancras North MP Kenneth Robinson drove the campaign and the Suicide Act 1961 received Royal Assent on 3 August.

However, the Act created a new offence of aiding, abetting, counselling or procuring another to commit suicide. This offence continues to be relevant today, occasionally where suicide is encouraged (such as R v S [2005] All ER (D) 339 (Mar) where a teenage boy encouraged his girlfriend to jump from a jetty) but more so in the debate on assisted suicide.

Although assisted suicide remains a crime, the decision in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL45 has resulted in the DPP issuing guidelines on when a prosecution will be in the public interest. Following this, the decision not to prosecute has been taken, for example in the case of the family of Daniel James who ended his life at a Dignitas clinic in Switzerland in 2008 (see http://www.cps.gov.uk/news/press_releases/179_08/).

The assisting offence under the Suicide Act 1961 is unique as an example of accessory liability existing despite the fact that the ‘principal’ being assisted commits no offence.

Along the same lines, section 51 of the Serious Crime Act 2007 supports the principle that ‘protective offences’ to which the ‘Tyrell principle’ applies mean that the ‘victim’ of such offences cannot be criminally liable. As such, a victim who asks for help in dying should not be prosecuted as an accessory to the offence of assisting their own suicide.

Times have changed since the 1950s and continue to do so in this area but there will have to be a very clear case on the evidence before a person is prosecuted for assisted suicide on the current guidelines.

Corker Binning is a law firm specialising in fraud, regulatory litigation and general criminal work of all kinds.

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