Campaigners seek assisted suicide review

16 November 2015

Disability campaigners have asked the High Court to judicially review the Director of Public Prosecutions’ decision to relax prosecution policy in cases of assisted suicide.

Disability campaigners Merv and Nikki Kenward have asked the High Court to judicially review the decision by the Director of Public Prosecutions (DPP) to relax the prosecution policy in cases of assisted suicide.

The case was heard today by the President of the Queen’s Bench Division and two other High Court judges at the Royal Courts of Justice. A ruling is not expected for some time.

It is the first time that a court has considered the issue of assisted suicide since the House of Commons decisively rejected Rob Marris MP’s assisted suicide bill in September.

Nikki Kenward, who was left paralysed by Guillain-Barre Syndrome in 1990, says that the decision by DPP Alison Saunders, in October 2014, to liberalise prosecution policy was “unconstitutional” and “leaves vulnerable people at risk from dodgy doctors.”

The change in wording makes it less likely that healthcare professionals will be prosecuted for assisting suicide, Mrs Kenward says.

The court was presented with evidence from a number of medical and legal experts, including Professor John Wyatt and Dr Philip Howard.

Mr and Mrs Kenward are being supported by the Christian Legal Centre and will be represented in court by Standing Counsel Paul Diamond.

Intervention by ‘Martin’

A third party, known as ‘AM’ or ‘Martin’, who has previously taken legal action in an attempt to force a relaxation in prosecution policy, is intervening in the case.

The Supreme Court ruled against Martin in July 2014, simultaneously rejecting the appeals of assisted suicide campaigners Tony Nicklinson and Paul Lamb.

Graphic procession

To highlight the significance of the case, Mr and Mrs Kenward led a procession from nearby St Clement Danes Church to the main entrance of the Royal Courts of Justice, arriving shortly before the hearing began.

The procession featured a giant puppet of a judge, another puppet of the DPP riding on an ass, and a coffin.

Relaxation of policy

Encouraging or assisting suicide is a criminal offence under the Suicide Act 1961 and carries a penalty of up to 14 years imprisonment.

Following a House of Lords ruling in the case of Debbie Purdy, a prosecution policy in cases of assisted suicide was first published in 2009 by Keir Starmer, then DPP and now Labour MP and an advocate for a relaxation of the law on assisted suicide.

In March 2012, during a debate on the guidelines, then Solicitor General Edward Garnier QC MP told the House of Commons:

“If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way.”

In October 2014, however, the DPP, Alison Saunders, amended the published guidelines without consulting Parliament, the public or the medical profession.

Substantive change

Mr and Mrs Kenward contend that the amended policy represents a substantive change to the likelihood of prosecution and undermines important safeguards for vulnerable people.

They argue that, under the new policy, “ideologically motivated” doctors who assist suicide are more likely to escape responsibility for their crimes.

They also highlight constitutional challenges, underlining that any substantive liberalisation of the law on assisted suicide is a matter for Parliament alone and that any change to prosecution policy must be approved by the Attorney General.

Their lawyers point to the 1689 Bill of Rights, which expressly forbids the Crown and its servants from “suspending” application of the law without the consent of Parliament, and to the Prosecution of Offences Act 1985, which requires that the DPP discharge her functions “under the superintendence of the Attorney General.”

‘Liberalisation by the back-door’

Explaining why she brought the case, Nikki Kenward said:

“This may appear a subtle change but it is substantive and highly significant. It makes it less likely that doctors and other healthcare workers would be prosecuted if they encourage or facilitate suicide and that places people at risk.

“Disabled people, the elderly, the terminally ill and others who are vulnerable need to be able to trust that doctors are there to protect life not to assist death. This change undermines that. It is liberalisation by the back-door.”

Mrs Kenward, a former theatre manager, was stricken by Guillain-Barre Syndrome at age 37. She was left paralysed for five months and only able to blink her right eye. Today, she uses a wheelchair and cannot tie her laces or hold a needle.

‘Justice with mercy’

Andrea Williams, chief executive of the Christian Legal Centre, which is supporting Merv and Nikki Kenward, said:

“The DPP needs to be held to account for her unilateral action. This Judicial Review is driven by a desire to protect the vulnerable and ensure that essential safeguards aren’t eroded.

“Sadly, this may not be the last time that assisted suicide is examined by the courts.

“The assisted suicide lobby is desperate to change the law by whatever means it can find.

“Assisted suicide campaigners repeatedly brought high profile cases to court to pressure Parliament to change the law. In September, the House of Commons gave very careful attention to the issue and voted against it by an overwhelming majority.

“Having lost the argument there, assisted suicide campaigners have signalled that they will refocus their attention on the courts.

“This relentless challenge must be resisted. The current law tempers justice with mercy and provides essential safeguards against abuse. We mustn’t allow those safeguards to be undermined.

“Life is a precious gift from God and we must protect those at risk.”

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