A High Court Judge has today (28th April) granted permission for a Judicial Review of recent liberalisation of the prosecution policy in relation to the law on assisted suicide.

The Suicide Act 1961 makes it a criminal offence to assist or encourage suicide. The DPP has a discretion on whether to prosecute according to the published policy.

Last October, the DPP amended the policy, making the prosecution of healthcare professionals in assisted suicide cases less likely.

Disability rights campaigners made the application for a Judicial Review of the DPP’s changes, which was heard in the High Court today.

Permission

Granting permission, Lord Justice Bean said:

“We propose to grant permission to proceed with the substantive claim. We are saying nothing about the strength of the claimant's claim beyond saying it is not frivolous or vexatious.

“The importance of the subject matter, and because justices did not speak with one voice in Nicklinson, leads us to the conclusion that the case should be heard at a divisional court.

“The main burden of the case is against the DPP.”

'Unconstitutional'

Nikki and Merv Kenward challenged the DPP's actions as “unconstitutional”. Nikki Kenward, who was once so paralysed she could only wink her right eye, argued against the  “liberalised” guidelines. Nikki, a former theatre manager, was struck down by Guillian-Barre syndrome in 1990, aged 37. Her son, Alfie, was then just one.

Nikki was initially fully paralysed for more than five months, and has been in a wheelchair since. She cannot tie her laces or hold a needle. She and her husband campaign against euthanasia and assisted suicide through the Distant Voices campaign group.

She welcomed the decision, saying: “The judge's decision today is a great relief to me and people like me. We are the ones who will suffer as a result of the change in guidance. The message from these new guidelines is that society thinks you are in the way. The best thing you can do is to agree to die.

“With the judge granting a Judicial Review we now have hope that the decision will be reversed and vulnerable people will be protected.”

Lawyers for the Kenwards also argued that the Attorney General is failing in his constitutional duty to ‘superintend’ the DPP on behalf of the government.

'Substantive liberalisation'

In a document submitted to the High Court, lawyers acting for Mr and Mrs Kenward argued that:

• Under the DPP’s new policy, “ideologically motivated” doctors who assist suicides “are much likelier to escape responsibility for their crimes”;
• “Any substantive liberalisation of the law on assisted suicide is, constitutionally, a matter for Parliament alone.” The new policy effectively “exempts” a category of offenders from the operation of criminal law as enacted by Parliament in the Suicide Act 1961.

The Kenwards are being supported by the Christian Legal Centre. Paul Diamond, the Centre's Standing Counsel, further argued that the 1689 Bill of Rights expressly forbids the Crown and its servants from ‘suspending’ application of the law, without the consent of Parliament.

'Give me reasons to live not to die'

In her witness statement, Nikki Kenward, said: “Surely the real joy in living is the joy of discovery; the joy of difference. I have tried to embrace all that I have discovered to use it, to understand it and hopefully to be appreciated and loved for it. My difference is the world's difference. I ask people to welcome it and to give me reasons to live not to die; to come with me and not without me into the future.”

'Looking to the Solicitor General's promise'

In the House of Commons on 27th March 2012, the then Solicitor General, Edward Garnier QC assured the House that ‘if a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way’.

Nikki and Merv Kenward believe that this promise has been broken.

“The previous version of the DPP’s policy was debated in the House of Commons on 27 March 2012, where MPs were concerned that a future DPP might change the policy on assisted suicide without parliamentary approval. The then Solicitor General, Edward Garnier QC, assured the House that ‘if a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way’.

“We look to that promise made by the Solicitor General to ensure that the law is not changed by the back door and to protect vulnerable people like us.

“We believe that it was unconstitutional for the DPP to liberalise the policy on assisted suicide without the approval of the Attorney General. The Prosecution of Offences Act 1985 provides in section 3(1) that “the Director shall discharge his functions under this or any other enactment under the superintendence of the Attorney General.”

'Without consultation'

The couple, who live in Aston on Clun, Shropshire, emphasised to the court that the original policy was introduced in 2010 after a wide public consultation. In stark contrast, the DPP introduced her new policy without any consultation with Parliament or the medical profession, let alone the general public.

The DPP has responded by denying that the policy has been changed and argues that it was merely ‘clarified’, she further claims that doctors will not be immune from prosecution.

'Overstepped the mark'

Andrea Minichiello Williams, barrister and chief executive officer of the Christian Legal Centre said:

“The DPP overstepped the mark in liberalising the law on assisted suicide.

“The DPP’s jurisdiction is in applying the law. In this case she is making law as opposed to applying it and in so doing she is acting outside the bounds of her jurisdiction. It amounts to a unilateral change in the law without recourse to Parliament.

“Lord Justice Bean's decision is very welcome. Now that the High Court has granted permission for a Judicial Review, we are one step closer to ensuring that the most vulnerable continue to be protected by the law.

“We will continue to give our full support to the Kenwards in their case against the DPP and the government.

“The Kenwards' action is needed to correct what is effectively liberalisation by the back door at a time when there is no public mood for any further liberalisation of the law, indeed the opposite. Successive opinion polls show that the public believe vulnerable adults need to be protected.

"Alison Saunders’ guidance will enable healthcare professionals operating on an ideological or other premise to offer their services to a person wishing to commit suicide... this is crossing the Rubicon.

"It will make any prohibition on a Dignitas-style of assisted suicide difficult to resist.

“This guidance weakens the protection given by parliament to people coming under pressure to commit assisted suicide.”