The Queen (on the application of Nicola Kenward and Mervin Kenward v The Director of Public Prosecutions (1st Defendant) HM Attorney Genera for England and Wales (2nd Defendant) AM (Intervener)

Hearing date: 16 November 2015

By s. 1 of the Suicide Act 1961 ("the 1961 Act"), suicide and attempted suicide ceased to be an offence but s. 2 provides that encouraging or assisting a suicide remains a crime. Modified by the Coroners and Justice Act 2009, the offence (punishable with a maximum term of 14 years imprisonment) is committed by a person who:

"(a)… does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) [his or her] act was intended to encourage or assist suicide or an attempt at suicide."

It is not suggested that the offence should be removed from the statute books but there is a substantial body of opinion which argues that it should be possible, in certain carefully defined circumstances, to assist the suicide of another. Extremely strongly held views are expressed both in favour of such a liberalisation of the law and against it; both sides rely on powerful and entirely legitimate ethical, philosophical, religious and social arguments. Ultimately, it is a matter for Parliament and, on a number of occasions, the issue has been debated: to date, no change of the law has achieved sufficient support.

By s. 2(4) of the 1961 Act, no proceedings may be instituted for the offence of encouraging or assisting a suicide except by or with the consent of the Director of Public Prosecutions ("DPP") and litigation to the highest level has been pursued in an effort to require the DPP to provide clarity and identify the circumstances in which that discretion will and will not be exercised. This application is a further step along that path. In short, it is a challenge to the amendment in October 2014 of the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide ("the policy"); this policy had been issued in 2010 and the amendment follows the decision of the Supreme Court in R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v DPP [2014] UKSC 38, [2015] AC 657 (" Nicklinson").

The challenge is brought by the claimants against the DPP in connection with the amended policy and the Attorney General in respect of his superintendence of the DPP. It is supported by a number of statements from highly qualified witnesses who have spent a lifetime concerned with the approach to be adopted towards the most severely disabled people in connection with the circumstances in which they wish to end their lives. It is opposed both by the DPP and the Attorney General who argue that the amendment does no more than reflect the Director's view of what she wished and wishes to convey in the policy which she has now elaborated following decision of the Supreme Court in Nicklinson. It also opposed by AM (who has been granted leave to remain anonymous and to intervene in these proceedings): AM was a party to the second action which forms part of the litigation in Nicklinson.

The Factual Context

Nobody doubts that the crime of assisted suicide can be committed by an unscrupulous and persuasive person who, perhaps for financial advantage, encourages a vulnerable individual to commit suicide. There are, however, different circumstances concerning individuals, of full capacity who are so severely disabled that although they have a fully informed and voluntary wish to bring an end to their lives, they lack the physical ability to do so. Equally, on the other hand, there are those, possibly disabled to a similar degree, who value the extent to which they can still take advantage of the life that is theirs and neither wish to bring their lives to an end nor suffer the risk that someone might seek to persuade them so to do. Nobody can seek to judge those who hold either of these views and nothing in this judgment is intended to do so.

The first claimant, Nicola Kenward, falls into the second group. She is severely disabled; the second claimant, Mervin Kenward, is her husband and carer. In 1990, Mrs Kenward unfortunately contracted a rare condition called Guillain-Barré Syndrome. It rapidly paralysed her. Even after prolonged physiotherapy, she is still now in a position where she is unable to walk and has very limited use of her arms and hands. Although the extremely serious disability has caused Mr and Mrs Kenward great hardship, the incredible way in which they have coped with their lives and with raising their son can only attract the admiration of all: their evidence is humbling to read. Mrs Kenward has a real determination to live life as fully as she can, she cannot contemplate wishing to end it, yet fears that the amendment to the Policy will make it easier for doctors to escape prosecution for the (unwanted) death of a patient not in their care but who has been put under pressure by others to commit suicide.

AM is in a different position. In August 2008, he suffered a brainstem stroke; he is almost completely unable to move and his condition is incurable; in a statement prepared for these proceedings, he makes it clear that he is only able to communicate by use of an eye operated computer. Again, he deserves the admiration of all. There is no question of his being put under any pressure by anyone but he is anxious, at some stage, to discuss with a medical professional the possible end of life options open to him including, potentially, the consideration of using of the services of Dignitas, a not for profit members' society operated under Swiss law which permits accompanied assisted suicide or some other end of life option at home.

Legal context

The starting point for the challenge to the approach of the DPP is a combination of the general application of the Code for Crown Prosecutors, issued pursuant to s. 10 of the Prosecution of Offences Act 1985 ("the Code"), relating to the test to be applied before any prosecution is mounted and the specific requirement that no proceedings shall be instituted for the offence of encouraging or assisting a suicide except by or with the consent of the DPP. The full code test (in respect of which Crown Prosecutors are making decisions in every case referred to the CPS for prosecution) has two stages. The first is the evidential stage (namely whether a prosecutor is satisfied that that there is sufficient evidence to justify a prosecution with a reasonable prospect of success); the second is the public interest stage (whether a prosecution is required in the public interest). This challenge considers the 'public interest' test.

In that regard, the need for a fiat from the Director merely serves to underline the extreme sensitivity of decisions in this area but does not essentially affect the analysis required, therefore adding little to the general requirement set out in the code: see Lord Hughes in Nicklinson ( at [268–277]). As Lord Neuberger PSC succinctly put it (at [39]):

"The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPP's prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service ("CPS"), it would have prevented the police prosecuting without the consent of the DPP)." (See para. 39)

However significant the precise function of s. 2(4) of the 1961 Act is to the way in which the discretion is exercised in this sensitive area, it is undeniably important as is evidenced by the approach which has, in fact, been adopted. As Lord Mance noted in Nicklinson (at [173]):

"Of 85 cases referred to the CPS between 1 April 2009 and 1 October 2013, 64 were not proceeded with and 11 were withdrawn. 9 are ongoing and only 1 has been successfully prosecuted. The Director's discretion is evidently effective to avoid prosecutions which would serve no useful purpose after the event…".

Before identifying the policy and the amendment under challenge, it is worth summarising the history of litigation in this area in order to appreciate how the decisions of the court have impacted on the approach of the DPP. Prior to the publication of a specific policy, the starting point to any decision as to prosecution was the general code test which is, of course, a decision made retrospectively, after the event. R (on the application of Pretty) v DPP [2002] 1 AC 800 concerned a lady who suffered from the progressive condition motor neurone disease. She wanted a guarantee of immunity from prosecution for her husband should he assist her to commit suicide (which she apprehended she would wish to do when her disease became intolerable). She based her complaint on the argument that...