The president of the Law Society, Robert Heslett, called on Parliament yesterday to settle the issue of assisted suicide “once and for all”.
He added: “One of the key planks of the principle of the rule of law is that questions of criminal liability should ordinarily be resolved by application of the law and not the exercise of discretion by officials.”
I am utterly bemused by Mr Heslett’s remarks. It is not just that he takes no account of the Coroners and Justice Bill currently before Parliament, clause 53 of which would redefine the law on encouraging or assisting suicide.
What I find so mysterious is that he does not seem to understand the fundamental principle behind prosecutions in this country. As the Attorney General Sir Hartley Shawcross famously said in 1951, “It has never been the rule in this country — I hope it never will be — that suspected criminal offences must automatically be the subject of prosecution”.
It follows that prosecutors — “officials”, to use Mr Heslett’s term — must exercise their discretion. Even if there is a realistic prospect of conviction, charges are not brought unless a prosecution would be in the public interest.
Of course, these prosecutors do not decide “questions of criminal liability”. These are matters for the courts.But prosecutors decide whether cases should come to court in the first place.
Mr Heslett says “it must be preferable on such deeply controversial questions for Parliament to make the final decision on questions of criminal liability”.
On individual cases? That would be totally impracticable and entirely inappropriate.
It is “not for public officials to essentially decide on serious moral issues on a case-by-case basis”, Mr Heslett continues. “Members of the public are entitled to have such questions decided through debate and the due process of law, not official discretion.”
But debate is exactly what the DPP, Keir Starmer, is seeking. The due process of the criminal law is founded on discretion. That is why Parliament decided that prosecutions for assisted suicide required the DPP’s consent.
Perhaps Mr Heslett is saying that Parliament should now decide whether assisting someone to commit suicide should be a crime.
Parliament has done. Assisting in suicide is a crime, and a serious one at that. An attempt to limit the scope of this law was defeated in the House of Lords this summer by 194 votes to 141.
That is as it should be. Mr Starmer’s draft guidance sets out the circumstances in which a prosecution for assisted suicide would be very much in the public interest.
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