Disability campaigners to appeal High Court ruling

4 December 2015

Disability campaigners Merv and Nikki Kenward are to appeal today’s High Court ruling that the Director of Public Prosecutions (DPP) acted lawfully in loosening prosecution policy in cases of assisted suicide.

Mrs Kenward, who was left paralysed by Guillain-Barre Syndrome in 1990, said that the court’s decision was “bizarre” and “leaves vulnerable people at risk from dodgy doctors.”

“On behalf of the disabled, elderly, terminally ill and others who are vulnerable, we will continue the fight for a reversal of this deceptive and dangerous liberalisation of prosecution policy,” she said.

An application for Judicial Review was heard last month by the President of the Queen’s Bench Division (Sir Brian Leveson) and two other High Court judges, but was rejected in a judgment handed down this morning.

Mrs Kenward said: “This ruling is bizarre. The DPP simply asserted that, despite standing for five years, the published prosecution policy didn’t actually express what had been intended. The court has accepted this blatant revisionism, without any real challenge or justification.

“This area of law is a matter of life and death. How can we be sure of proper protections if the goalposts can be moved, on a whim, five years down the line, without consultation? How can anyone rely on the prosecution policy, if it can be unilaterally ‘reinterpreted’ by the DPP without public scrutiny?

“The court says that the DPP’s action was simply a ‘clarification’ and not a substantive change. But that ‘clarification’ will make a difference in practice to who is prosecuted, so how can it not be a substantive change?”

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

‘Subtle but substantive change’

DPP Alison Saunders amended the prosecution policy in October 2014. The change in wording makes it less likely that healthcare professionals will be prosecuted for assisting suicide.

Explaining why she brought the case, Nikki Kenward said:

“It may appear a subtle change, but it is substantive and highly significant. It makes it less likely that doctors and other healthcare workers will be prosecuted if they encourage or assist suicide.

“People need to be able to trust that doctors will always protect life, not help to take it. This change undermines that trust. It is liberalisation by the back-door.

“The law is there to protect, but if it is to protect in practice, it must be enforced. The DPP quietly changed the policy without consultation. She must be held to account. Her action puts vulnerable people at risk from dodgy doctors.”

Mrs Kenward, a former theatre manager, was stricken by Guillain-Barre Syndrome in 1990, aged 37. She was left almost completely paralysed for five months, able only to blink her right eye. Today, she uses a wheelchair and cannot tie her laces or hold a needle.

‘Unilateral action’

Andrea Williams, chief executive of the Christian Legal Centre, said:

“The DPP needs to be held to account for her unilateral action. We will continue to support Merv and Nikki Kenward in their fight to protect the vulnerable and ensure that essential safeguards aren’t eroded.

“It is entirely wrong for the effect of law to be altered without the express approval of Parliament.” 

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 a 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, DPP Alison Saunders amended the published guidelines without consulting Parliament, the public or the medical profession.

Undermining important safeguards

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.

They 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.”

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