The law should be clear enough for us to know what is and is not lawful. And when it comes to something as personal as the circumstances of our own death, that need for clarity becomes a basic human right.
That in essence was Debbie Purdy’s case, a case that she won yesterday in the House of Lords. The law lords’ judgment finally gets a grip of the situation in which a severely ill person seeks assisted suicide abroad. It should not have taken three years of litigation in various courts for the law lords to accept the simple proposition that a person, in determining how to die, has a right to know what is lawful and what is not; and whether they can be accompanied by their loved one on the way to death.
Ms Purdy has persuaded the law lords to put an end to the legal limbo in which the relatives of many terminally ill people have been trapped. Individuals faced with this dilemma did not know whether or not they faced jail for accompanying a loved one to a country where assisted suicide is lawful.
This is no small matter. The maximum sentence for aiding or abetting suicide is 14 years in jail. And there have been 115 known cases from this country in which people have travelled abroad to accompany people who ended their lives. In each case the friends or family members have had to live with the uncertainty that they might serve time in prison; nine cases have been referred to the Director of Public Prosecutions (DPP) but thus far there have been no court cases. Such people will now be able to sleep more easily.
The laws lords have required the DPP to issue a policy statement in respect of people who accompany the terminally ill or those severely and permanently disabled who have freely decided that they want to go to a country to die where assisted suicide is lawful, and have made that decision with capacity and are well aware of the consequences. The law lords have given a pretty clear steer that people within this definition will not be prosecuted.
This is of great relevance to Debbie Purdy and her husband. She has primary progressive multiple sclerosis. She is in a wheelchair and has lost the ability to carry out many basic tasks for herself. Further deterioration is inevitable. She expects that there will come a time when her continuing existence will become unbearable. When that happens she wants to end her life while she is still able to do so.
But by that stage her illness will render her unable to do so without assistance. So, as the law allows her, when the time comes, she wants to travel to a country, probably Switzerland, where assisted suicide is lawful. Her husband, Omar Puente, is willing to help her to make this journey. But even though it is not an offence for Ms Purdy to make this journey and to have an assisted suicide there, it has always been thought that a person who aided her to go to Switzerland for that purpose would be committing a crime.
This matters deeply to Ms Purdy, and others in her position, because it could determine when she ends her own life. If the risk of prosecution is sufficiently low then she can wait until the very last moment before she makes the journey. If the risk is too high she will have to travel alone and much earlier than she would otherwise have done.
Ms Purdy brought her court proceedings because she was not willing to expose her husband to the risk of such a prosecution. And it is a serious risk because the DPP does not set out anywhere, or with any clarity, on what criteria he would decide to prosecute. The law lords have accepted her argument that precision is needed and ordered the DPP to make it clear.
The DPP will now have to set out in writing what his policy will be in prosecuting cases in enough detail for a person to know whether what he or she does will attract the attention of the law. Requiring that degree of clarity means the DPP will in practice be carving out an exception to the terms of s2(1) of the Suicide Act. This is a significant change because it forces the State to commit itself to when and in what circumstances there will be no prosecutions. It prevents any return to the previous position in which a compassionate assister could be prosecuted and it rightly prevents the ambit of the criminal law being determined by the discretion of just one person.
This ruling, however, does not decriminalise the act of accompanying a suicide abroad. Just as no one wants the compassionate assister to be punished, so no one wants the malicious encourager to escape the force of the criminal law. A prosecution could still be mounted if an individual was unduly pressured to travel abroad to end his life by his companion.
So the lords have provided the route out of this particular mess but they have raised an obvious question. Do we have the stomach to prosecute an individual who as an act of compassion assists with a suicide within the borders of this country?
The law gets itself into a mess when its scope goes beyond what society thinks is appropriate: criminalising circumstances in which no one is willing to prosecute is a clear example of the law overreaching itself. So the debate after the Purdy case, inside and outside Parliament, will inevitably turn to whether assisted suicide should be lawful in Britain or not.
The best next step would be for the Government, which has been sensibly neutral on this issue, to initiate a consultation with doctors, lawyers and people involved in the care of the dying and the severely disabled, on the different legal options.
The law lords stepped in where the law had let Ms Purdy down. The right thing now is to investigate properly and in a measured way what further change is required, if any, to the law on assisted dying within these shores. It should not take another Debbie Purdy, battling through the courts, to determine whether they or their loved ones will be prosecuted.
Charles Falconer, Baron Falconer of Thoroton, a former Lord Chancellor.