Kenward & Anor, R (On the Application Of) v The Director of Public Prosecutions & Anor [2015] EWHC 3508 (Admin)

[2015] EWHC 3508 (Admin)

Case No CO/199/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/12/2015

Before

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE WILKIE

MR JUSTICE CRANSTON

Between

THE QUEENClaimants

(on the application of NICOLA KENWARDClaimant

and MERVIN KENWARDClaimant

Paul Diamond (instructed by Andrew Ritson Solicitors) for Mr & Mrs Kenward

John McGuinness Q.C.(instructed by Crown Prosecution Service) for D.P.P.

James Eadie Q.C.and Louis Mably (instructed by the Government Legal Service) for A.G.

Adam Sandell (instructed by Leigh Day) for AM

Hearing Hearing date: 16 November 2015

Judgment

Sir Brian Leveson P :

[1]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.”

[2]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.

[3]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").

[4]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

[5]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.

[6]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.

[7]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

[8]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.

[9]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)

[10]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…”.

[11]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 s. 2 of the 1961 violated her rights under the European Convention on Human Rights ("ECHR") and in particular, article 2 (being an unqualified right to life) and article 8(1) (which entitled her to respect for her private life). She recognised that this latter right was qualified as described in article 8(2) but contended, nevertheless, that it was engaged. The House of Lords held that Mrs Pretty’s complaints failed to engage any ECHR right. In the alternative, if ECHR rights were engaged, the House concluded, in the words of Lord Bingham (at [30]), that the executive “[h]ad shown ample grounds to justify the existing law and current application of it”; see also Lord Hope and Lord Scott (at [62], [97], and [124]) and Lord Hobhouse implicitly (at [111] and [120]).

[12]Mrs Pretty then applied to the European Court of Human Rights ("ECtHR") who took a different view. The court held that Mrs Pretty was “prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life” and as such her case raised an interference with her Article 8(1) right: see Pretty v United Kingdom

(2002) 35 EHRR 1

([61-67]) The court, however, went on to find that the interference with Mrs Pretty’s right was justified under Article 8(2) and, in particular, did not regard the blanket nature of the ban on assisted suicide to be disproportionate: see [76] and [78].

[13]Following the decision in Pretty v UK, the judicial approach in this country changed. In R (on the application of Purdy) v DPP

[2010] 1 AC 345

, proceedings were brought to require the DPP publicly to spell out his policy in relation to the exercise of prosecutorial discretion in this type of case. Ms Purdy suffered from progressive multiple sclerosis and expected a time would come when she would regard her continued existence as intolerable and would wish to end her life. She would then need the assistance of her husband to do so, by taking her to Switzerland to use the services of Dignitas, and wished to ensure, as far as possible, that he would not be prosecuted under section 2(1) of the 1961 Act. She sought information from the DPP as to his likely attitude to a prosecution of her husband in those circumstances, and he declined to give it.

[14]Departing from its decision in Pretty v DPP, and following the decision in Pretty v UK, the House of Lords held that the refusal of the DPP to provide information as to his likely attitude infringed the right which Ms Purdy had under article 8. On the basis that the Convention was engaged, Ms Purdy was entitled to expect the law to be accessible and foreseeable, and this required that “the law must indicate with sufficient clarity the scope of any such discretion conferred upon the competent authorities and the manner of its exercise”: see Lord Hope at [43]. The code did not suffice.

[15]This conclusion was reached following the approach of the ECtHR in Hasan and Chaush v Bulgaria

(2000) 34 EHRR 1339

to the effect “[t]he level of precision required by domestic legislation… depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed”: see [84]. The code applied to all crimes and, in the light of these observations, the House found that it “[f]ell short of what [was] needed to satisfy the Convention tests of accessibility and foreseeability” in relation to assisting a suicide: see Lord Hope at [53]. As a result, the DPP was required “to clarify what his position is as to the factors that he regards as relevant for and against prosecution” and “promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such that which Ms Purdy’s case exemplifies, whether or not consent to a prosecution”: see Lord Hope at [55-56].

[16]It is important to underline that Purdy did not change the law on encouraging or assisting suicide: neither did the requirement to identify a policy purport, in any way, to 'decriminalise' the offence of encouraging or assisting suicide. The consequence of the decision, however, was that the then DPP published an Interim Policy for prosecutors in respect of cases of assisted suicide and, at the same time (September 2009) launched a consultation exercise. Having received nearly 4,710 responses, in February 2010, the policy (along with a detailed summary of the responses) was published. The policy underlines (at para. 6): “Nothing in [the policy] can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that encourages or assists the suicide or the attempted suicide of another person”.

[17]The policy also confirms that prosecutors must apply the full code test as set out in the Code for Crown Prosecutors. Having satisfied the evidential test, responding to the specific requirements prescribed in Purdy, it sets out public interest factors tending in favour of and against prosecution. Although only one of these factors has been the subject of argument in this application, to provide the correct context it is appropriate to set out the factors in full. First, in order to identify the approach to this limb of the test, it is made clear:

"Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. 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. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed."

[18]Public interest factors tending in favour of a prosecution are then listed: para. 43 provides that a prosecution is more likely to be required if: 1. the victim was under 18 years of age; 2. the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide; 3. the victim had not reached a voluntary, clear, settled and informed decision to commit suicide; 4. the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect; 5. the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative; 6. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. the suspect pressured the victim to commit suicide; 8. the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. the suspect had a history of violence or abuse against the victim; 10. the victim was physically able to undertake the act that constituted the assistance him or herself; 11. the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. the suspect gave encouragement or assistance to more than one victim who were not known to each other; 13. the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance; 14. the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer and the victim was in his or her care; 15. the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

[19]The list as originally formulated was then followed by the observation: "On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.

[20]Turning to the factors which tend against prosecution, para. 45 identifies that a prosecution is less likely to be required if: 1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. the suspect was wholly motivated by compassion; 3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

[21]The decision, therefore, requires a multifactorial judgement which recognises in full measure the very different circumstances in which assisting suicide might be committed and might be thought to distinguish with some care those cases in which condign punishment is entirely appropriate and those which, on the contrary, demonstrate enormous sensitivity and compassion in extremely difficult circumstances. The difficulty which arises, however, is in relation to the proper construction of the role assumed by medical and health professionals. Along with a general argument about article 8 in the context of the guidance, the provision gave rise to another challenge.

Nicklinson

[22]Once again, the facts of the cases argued before the Supreme Court put the issue into context. In the first appeal, Mr Nicklinson and then, after his death, his wife and Mr Lamb sought a declaration that it would be lawful for a doctor to kill them or to assist them in terminating their life, or, in the alternative, a declaration that the current state of the law in that connection was incompatible with their right to a private life under article 8. This relief was refused and, by a majority (7:2), the Supreme court dismissed the appeal. The arguments advanced are not of direct relevance to the present challenge.

[23]What is of direct concern is the argument mounted by AM in the second appeal. I have described his condition at the beginning of this judgment. He began proceedings seeking an order that the DPP should clarify, and modify, her policy and, in particular, para. 43, to enable responsible people such as carers to know that they could assist him in committing suicide through Dignitas, without the risk of being prosecuted. In the High Court, the claim failed but its subsequent progress through the courts is of critical importance.

[24]In the Court of Appeal (R (on the application of Nicklinson and Lamb) v Ministry of Justice; R (on the application of AM ) v DPP

[2013] EWCA Civ 961

), AM achieved partial success. The majority (Lord Dyson MR and Elias LJ), held the policy lacked clarity and, in consequence, was not in accordance with the law and constituted a breach of

article 8 of the ECHR

. In particular, they concluded (at [140]): “Para 43(14) is particularly problematic. How does it apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that(i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and

(ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care. In short, we accept the submission of Mr Havers that the Policy does not provide medical doctors and other professionals with the kind of steer… that it provides to relatives and close friends acting out of compassion”.

[25]Lord Judge CJ did not agree. In holding that AM’s appeal should be dismissed in all respects, he said:

“185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. 186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy… deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the 'victim' to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable AM, or anyone who assists him, to make an informed decision about the likelihood of prosecution.”

[26]Addressing Lord Judge's certainty as to the proper interpretation of para. 43.14, the majority put the matter in this way (at [141]):

“The Lord Chief Justice does not accept that the guidance creates the uncertainty which we have identified. He believes that it is tolerably plain that if a social worker acts out of compassion, he or she will not be prosecuted even if paid for providing the service since the purpose of paragraph 43(13) is to deal with "profiteering". However, the helper could not be the social worker or carer who has had the responsibility for caring for the victim since he or she is in a position of trust. This might be the proper construction of the guidelines, but we cannot, with respect, feel confident that it is. Clearly AM's lawyers and social workers are not confident that it is; and nor were the members of the Falconer Commission. If the DPP intends to convey the message as the Lord Chief Justice understands it, we see no reason why it should not be spelt out unambiguously.”

[27]The case was then pursued to the Supreme Court. During the course of the hearing, it was then made clear on behalf of the DPP that her view of the proper ambit of para. 43.14 was reflected in the observations of Lord Judge CJ. Notwithstanding that concession, however, the Supreme Court did not consider that, on its face and without further clarification, the meaning of para. 43.14 was as certain as Lord Judge CJ had thought. Lord Neuberger PSC concluded (at [143]): “For the reasons given by Lord Dyson MR and Elias LJ, I do not agree with Lord Judge CJ that one can spell out of the 2010 Policy the approach which he sets out so clearly in those two paragraphs [i.e. 185 and 186 of his judgment]”.

Lord Mance agreed: see [192-193] and Lord Sumption went so far as to say (at [250]): “On its face, it discloses a much more general principle that the professional character of an assister's involvement is in all circumstances a factor tending in favour of prosecution, although one whose weight will vary (like all the listed factors) according to the circumstances”.

[29]It is, however, important to underline that Lord Sumption was not purporting to provide an interpretation of para. 43.14 that would be binding on the DPP. On the contrary, while not prepared to make an order to this effect, the Supreme Court considered it sufficient to make it clear that the DPP was under a duty to clarify her policy. Lord Neuberger continued his judgment (at [143]) in this way:

“However, the important point for present purposes is that what is said in those two paragraphs [of the judgment of Lord Judge] represents, according to her counsel on instructions, the view of the DPP herself, as to the appropriate policy. If the DPP's policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a "public authority", to ensure that the confusion is resolved. 144. However, I am of the view that it would not be appropriate, at least at this stage, to make an order which would require the DPP to amend the 2010 Policy. Rather, I think, it is appropriate to leave it to her to review the terms of the 2010 Policy, after consultation if she thinks fit, with a view to amending it so as to reflect the concerns expressed in the judgments of this Court, and any other concerns which she considers it appropriate to accommodate … 148 … (e) In common with all members of the Court, I do not consider that the Court should involve itself with the terms of the DPP's policy on assisted suicide, albeit that I would expect the DPP to clarify her policy.”

[30]Similarly, Lord Mance held that “the Director should be left to consider the position and either confirm or reformulate her policy, as she may… decide”: see [193]. Lady Hale DPSC stated that if what was meant by para. 43.14 was the interpretation placed upon it by Lord Judge, “that should be made clear in the policy”: see [322]. Likewise, Lord Sumption reasoned (at [251]): “Counsel for the Director accepted… that… Lord Judge CJ’s judgment correctly represented her policy. If this is so, and if, as I consider, the published policy says something different, then it is clear that the [DPP] is bound to resolve the inconsistency one way or another”.

[31]In essence, therefore, the Supreme Court was saying no more than if the meaning of para. 43.14 of the policy for which the DPP contended was consistent with that of Lord Judge, then she ought to make that clearer than appeared from the (then) wording of the paragraph. In particular, it was not suggesting that the policy as a whole was flawed or, indeed, that the policy for which the DPP contended was not entirely in accordance with the law.

The October 2014 amendment

[32]In order to understand the approach of the DPP and the background to the concession before the Supreme Court, it is appropriate to note that the public consultation specifically focussed on this issue. The interim policy (upon which the consultation was based) identified a factor in favour of prosecution to the effect that “The suspect was a nurse, doctor or other healthcare professional and the victim was in their care”. Concern was expressed that the policy should not single out carers working in a care or nursing home. The published response to the consultation on this aspect was:

“ 3.7 On reflection, the CPS believes that the emphasis of this factor should be around any healthcare worker who has the victim in his or her care. The fact such a person encourages or assists the suicide of the victim, whilst acting in that capacity, should be a factor in favour of prosecution. 3.8 The CPS considers that this factor should be extended to any person in a similar position of authority …”

[33]The judgment in Nicklinson was published by the Supreme Court on 25 June 2014. In October, the DPP promulgated a revision to the language of the relevant part of the policy. The amendment did not alter any of the words in para. 34.14 but emphasised the last nine words of that sub-paragraph and added a footnote. The paragraph now reads that prosecution is more likely to be required if:

“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; [1] … Footnote [1]: For the avoidance of doubt the words "and the victim was in his or her care" qualify all of the preceding parts of this paragraph [43.14]. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.”

[34]Thus, the amendment (foreshadowed by the response to the consultation) clarifies that the relevant factor in favour of prosecution does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end his or her life. The publication of the amendment points to the interpretation put on this aspect of the policy by Lord Judge. Following her decision, the DPP wrote to the Supreme Court (copied to the solicitors who had been involved in the Nicklinson litigation) re-iterating that the interpretation represented “what it [was] intended to say”, going on: "I have considered whether there is a risk that making this amendment, to one factor, could in any way make the guidance as a whole incoherent. I am satisfied that it will not do so … The change I have decided to make will not mean that additional suspects will be ‘covered’ by this factor, in the sense of being entitled to expect that they would not be prosecuted. It merely means that some of those who might currently wonder whether this particular factor, in favour of prosecution, would apply to them can be assured that it would not. … I am satisfied that clarifying the circumstances in which a particular public interest factor in favour of prosecution will not apply does not materially change the guidance.”

[35]Mr Diamond, on behalf of Mr and Mrs Kenward, characterises this modification differently. He submits that, in Nicklinson, AM maintained that the DPP’s policy was X, and demanded it to be changed to Y. The DPP responded to the effect that her policy was, in fact, Y. The majority of the Supreme Court concluded to the contrary, that is to say by saying that the policy was X, disagreeing with AM that it must be changed to Y. Following that decision, the DPP leaves court and tells the public that her policy is Y and has always been Y.

[36]As will clear from what I have already set out, I reject this view of what has happened. The Court did not tell the DPP that her policy was X and not Y. As I have explained, the starting point is the judgment of the majority of the Court of Appeal which posed a number of questions, which they believed were left unanswered by para. 43.14, when considered alone or in conjunction with other parts of the policy: see [140-141] extracted above. Disagreeing with Lord Judge, they found that para. 43.14 created “uncertainty”. They were not as confident as he was about the interpretation of para. 43.14; they did not at any point offer a contrary interpretation.

[37]The same is true of the judgments in the Supreme Court. As extracted, Lord Neuberger merely agreed for the same reasons as the majority in the Court of Appeal that the policy and para. 43.14 in particular did not “spell out” the interpretation of Lord Judge: see [143]. Lord Mance agreed with Lord Neuberger and Lord Sumption that it was “not clear” para. 43.14 had the significance attached to it by Lord Judge and that it was “open to question” whether that interpretation would be consistent with other aspects of the Policy: see [193]. Baroness Hale agreed with Lord Neuberger that the DPP should reconsider the Policy “in the light of the difference of opinion as to its meaning which emerges from the judgment of the Court of Appeal”: see [322].

[38]I accept that Lord Sumption went further than other members of the court and did consider that para. 43.14, as it then stood, said “something different” to the meaning given to it by Lord Judge: it disclosed “a much more general principle that the professional character of an assister’s involvement is in all circumstances a factor tending in favour of prosecution”. He then said that the DPP had to resolve the inconsistency “one way or another”: [251].

[39]I reject the proposition that it is possible to glean from these judgments a definitive interpretation of para. 43.14 (let alone, as argued, one in which 14 of the 15 judges who had considered the matter agreed), which has the effect of rendering the October 2014 amendment unlawful. Moreover, it is impossible to go so far as Mr Diamond does to establish that any issue over the interpretation of para 43.14 has been so conclusively determined judicially that it is res judicata.

[40]The Court of Appeal in Nicklinson made what Lord Hughes described as a “wholly open-ended order” in the form of a declaration that the DPP was in breach of section 6(1) of the Human Rights Act 1998, when read with

article 8(2) of the ECHR

, by making “insufficiently foreseeable the consequences, in terms of the exercise of his prosecutorial discretion under section 2(4) of the Suicide Act 1961, of the encouragement or assistance of a suicide or attempted suicide”: see [282]. This declaration was quashed by the Supreme Court which held that the policy was not unlawful.

[41]Furthermore, there is no hint in the Supreme Court judgments that if the DPP amended para. 43.14 to make it clearer that it accorded with Lord Judge’s interpretation (as was clearly contemplated she might), she would as a consequence render a lawful policy once more unlawful. Therefore, it cannot be the case that the Supreme Court held para. 43.14 to mean what Mr Diamond wishes it to mean. The point is that the Court did not make a finding in this regard. Instead, it lamented the lack of clarity in para. 43.14 and left it to the DPP to reconsider it.

[42]Mr Diamond’s assertion that the Supreme Court determined the meaning of para. 43.14 would also be inconsistent with the principle that the content of the policy is for the DPP and not the Court, as was established in Purdy and confirmed in Nicklinson. In this regard, the majority of the Court of Appeal expressly envisaged that the Director could spell out unambiguously that para. 43.14 bore the meaning attributed to it by Lord Judge. Reverting to the views expressed in the Supreme Court, Lord Neuberger in the Supreme Court said (at [141]): “…it is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPP's policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently… it would not be right for a court in effect to dictate to the DPP what her policy should be.” (Para. 141)

[43]As stated, Lord Neuberger said that “the important point” was that the view of Lord Judge represented the DPP’s view of the Policy and her duty then was to resolve the confusion: see para. 143. Lord Mance concluded that it was for DPP to either confirm or reformulate her policy “as she may then decide”: para. 193. Lord Sumption (whose views came closest of all the Supreme Court Justices to formulating a different interpretation of para. 43.14) concluded his analysis of the policy with an unambiguous statement that its formulation was a matter solely for her (at [254]):

“But for present purposes the decisive consideration is that it is a matter for the Director and not for us to decide whether to adopt Lord Judge's interpretation of the policy and if so how and how far to do so.”

[44]Baroness Hale dealt with the issue of content by saying that if the DPP agreed with Lord Judge’s interpretation of the Policy, that should be made clear in the policy because “people should be able to go to that policy, and not to the judgment in [the Supreme Court], in order to understand it”: see [322].

Requirement to review relevant material and consult

[45]Mr Diamond asserts that if the DPP misunderstood the nature of the amendment, i.e. that it was in fact a change rather than a clarification, she was under a duty to review relevant material and to undertake a consultation. In the event, I would reject the contention that the amendment was anything other than a clarification of the policy that the DPP wished to enunciate. Neither is there any support for the submission that the DPP was under a legal obligation to conduct any form of further consultation exercise.

[46]Only Lord Neuberger and Lord Sumption referred to consultation, and each made it clear that it was for the DPP to determine if she should consult or not. Lord Neuberger said it was appropriate to leave it to the DPP “to review the terms of the 2010 Policy, after consultation if she sees fit”: see [144], emphasis added. Lord Sumption considered that the DPP might wish to consider the relationship between a revised para. 43.14 and other factors set out in the policy and “these questions might require consultation with the medical professions or even the general public”: see [253], emphasis added.

[47]A summary of the relevant common law principles on the duty to consult are set out in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and Others

[2014] EWHC 1662

; see [97-98] and summarised the position (at [99-100]). In my judgment, none support Mr Diamond’s proposition that the DPP was under a duty to consult, or to make further enquiries, before promulgating the October 2014 amendment, not least because the DPP had made it clear to the Supreme Court that this formulation was what she had understood by the policy. Furthermore, given the open textured nature of the very full consultation which sat alongside the publication of the interim policy, it is impossible to argue that had the DPP wished, she was not fully entitled to articulate the policy as it is now expressed.

[48]I must deal with one further argument that Mr Diamond advanced. In relation to the circumstances in which the amendment came to be expressed, he submitted that the DPP was being less than candid when she asserted that her reading of the policy was as Lord Judge had postulated: she was, he said, changing her approach. In the light of the response published following the consultation to which I have referred above, recognising, of course, that it was issued by the former DPP, I see no basis for challenging either the truth or the accuracy of what she said.

Requirement to consult the Attorney General

[49]Finally, Mr Diamond asserts that DPP and/or Attorney General have breached the duty expressed within s. 3 of the Prosecution of Offenders Act 1985 (“the 1985 Act”) and/or The Protocol Between the Attorney General and the Prosecuting Departments (“the protocol”).

[50]Section 3(1) of the 1985 Act provides that the DPP “shall discharge his functions under [the 1985 Act] or any other enactment under the superintendence of the Attorney General”. The provision identifies the accountability of the Attorney General to Parliament for the functions and work of prosecuting departments (including the Crown Prosecutions Service and the DPP). As Mr James Eadie Q.C. for the Attorney General argued, it does not create a legal duty actionable at the suit of an individual aggrieved about the approach taken by such departments, in this case the Crown Prosecution Service and the DPP.

[51]In any event, a consideration of the protocol (dated July 2009) reveals the argument to be without substance. It sets out how the Attorney and the Directors of the prosecuting departments, including the DPP, exercise their functions in relation to each other and provides that the DPP will consult the Attorney about any proposed changes to the Code: see para. 2.5. It goes on (at para. 5.4):

“The Attorney General is not consulted about the generality of prosecutors’ guidance, but is consulted and informed in a timely way about any proposed statement of guidance which raises difficult or sensitive questions of law or public policy.”

[52]As a matter of fact, the Attorney General was informed about the amendment prior to it being issued, in the manner contemplated by para. 5.4 and there was no requirement under it for a more formal consultation about the amendment. Nor does the Attorney consider that it would have been appropriate or necessary to have gone further than the DPP did. Suffice to say, there was no duty on the Attorney to intervene to prevent the amendment from being made and no basis for contending that he should properly have done so. This allegation adds nothing to the fundamental challenge which, as I have indicated, I would, in any event, reject.

Conclusion

[53]It is important not to misunderstand the effect either of the policy or the impact of the amendment to the policy introduced by the DPP. The policy does not remove bright lines where previously they existed and no assistance or encouragement is rendered lawful that previously was unlawful. The gradation between circumstances in which it is appropriate to prosecute and those in which it is not will always involve a very detailed consideration of all the facts and, ultimately, a balanced judgement: it is for that reason that I set out all the factors set out in the policy that fall to be considered. Neither does the policy impact on the view which professional regulatory bodies are entitled to take about the obligations and responsibilities of those whom they regulate: the criminal law identifies minimum standards of behaviour and professional requirements may well be set at a higher level. Thus, although I recognise that Mr and Mrs Kenward hold very strong views, I do not accept that this policy provides support for the proposition that those views will not be respected by all with whom they come into contact.

[54]In the circumstances, in my judgment, this application for judicial review should be dismissed. Mr

Justice Wilkie :

[55]I agree. Mr

Justice Cranston :

[56]I also agree.