On 5 October, the Crown Prosecution Service published reviewed and updated guidance on the prosecution of homicide offences. This guidance includes new detail in relation to deaths arising from ‘mercy killings’ and failed suicide pacts. There are amended sections covering public interest factors – both tending in favour of and against prosecution – which are relevant to such cases.
- The CPS notes that the public interest in prosecuting homicide cases is very high, with harm and culpability ‘inevitably’ being of the utmost seriousness. However, the guidance goes on to set out a further framework for prosecutors to follow where the case concerns:
- a mercy killing and the charge is murder;
- an attempted mercy killing and the charge is attempted murder; or
- a failed suicide pact (in the context of a mercy killing).
Cases of this kind are not straightforward to deal with, for either the prosecution or defence. As the guidance notes, there is no definition in law (either statute or common law) as to what constitutes a ‘mercy killing’, although the guidance defines it as when a life is taken, or an attempt is made on someone’s life, upon the wishes of the victim and the suspect may act out of mercy. The guidance makes it clear that killing in this context does not provide a defence and, for that reason, those involved in such a killing will be charged with murder, or attempted murder, as the case may be.
However, the concept of a ‘suicide pact’ does appear in statute: it is defined at section 4(3) of the Homicide Act 1957. Subsection (1) of that section provides that where a person ‘acting in pursuance of a suicide pact between him and another’ kills the other person, or is a party to the other being killed by a third person, this must be charged as manslaughter.
Subsection (2) provides that the burden will be on the defence to prove that a person charged with murder was acting in pursuance of a suicide pact, and thus avail the defendant of a partial defence which will reduce the charge to one of manslaughter.
Prosecutors may, generally, only proceed with a prosecution where the ‘Full Code test’ has been satisfied. This involves two stages: the evidential stage, where there must be sufficient evidence to provide a realistic prospect of conviction; and the public interest stage, which states that a prosecution will only be brought if it is in the public interest. The guidance explains that, at the public interest stage for a mercy killing case:
- the circumstances of the death and the state of mind of the victim and suspect will be relevant in assessing the various public interest factors;
- all reasonable lines of enquiry must be pursued ‘in order to obtain, wherever possible, independent verification of the suspect’s account’, for example from a victim’s family, friends or healthcare professionals;
- the various public interest factors must be considered objectively, and prosecutors must ‘assess the credibility and reliability of any account provided’, which will include considering if there is other evidence supporting, or tending against, a suspect’s account;
- because each case must be considered on its own facts and on its own merits, prosecutors ‘must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment’.
Public interest factors: for and against
The guidance sets out 13 factors tending in favour of prosecution, but highlights that these are not exhaustive. These factors include where the victim was under 18 or otherwise legally lacked capacity; where the suspect influenced the victim not to seek medical treatment, care or independent professional advice; where the suspect was acting in their capacity as a healthcare professional caring for the victim; and where the suspect was motivated by financial reward.
The guidance also sets out six factors, again non-exhaustive, tending against prosecution. These include where the victim had made ‘a voluntary, clear, settled and informed decision’ that their life should end, where the suspect was a reluctant actor, and where the suspect was motivated ‘by compassion alone’.
Holistic approach
The guidance notes, a number of times, the importance of prosecutors having regard to the case as a whole. This includes considering, where there are public interest factors tending against prosecution, whether a prosecution should go ahead nonetheless and leave it to the court to consider any belief that the killing was an act of mercy as a mitigating factor if the defendant is convicted (per schedule 21, paragraph 10(f) of the Sentencing Act 2020).
The CPS has clearly taken a carefully considered approach to the guidance, but ultimately it stresses that in most cases of homicide the expectation is that a prosecution will almost certainly be required in the public interest if the evidential test is met. There are, of course, sound public policy reasons for this approach, but unfortunately it gives little assistance to those who are torn between a genuine desire to alleviate the suffering of a loved one on the one hand, and the fear of being prosecuted for a homicide offence on the other. Resolution of that dilemma is a task that is probably best left to parliament, which is currently undertaking an inquiry into the law on assisted dying.
Edward Jones is a senior associate at Kingsley Napley, London
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