By Christelle Sim
On 14 January 2022, the Crown Prosecution Service (CPS) launched a 12-week public consultation on updated legal guidance on homicide offences. This sets out public interest factors prosecutors should take into account when determining whether or not to charge a suspect with murder or manslaughter, in cases where deaths arise from suicide pacts or ‘mercy killings’ (in which suspects believe they are acting wholly out of compassion for the deceased).
Currently, the CPS guidance states that a prosecution is almost certainly required, even in suicide pact or ‘mercy killing’ cases. The new guidance distinguishes between homicide, suicide pact cases, and ‘mercy killings’ in determining whether a prosecution is required in the public interest. It aims to provide clear advice to prosecutors who have been asked either for a charging decision or for early advice to the police and ensures that there is predictability, transparency and consistency across the decision-making processes.
However, it is important to note that the update does not decriminalise any offences, and a suspect is not immune from prosecution even if they claim it was a ‘mercy killing’ or a failed suicide pact. The guidance does not account for ‘assisted dying’ or other similar scenarios which are regarded separately in law.
A prosecution is more likely to be required if: [1]
the victim was under 18 years of age;
the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to end their life;
the victim had not reached a voluntary, clear, settled and informed decision to end their life;
the victim had not clearly and unequivocally communicated their decision to end their life to the suspect;
the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim;
the suspect pressured the victim or did not take reasonable steps to ensure that any other person had not pressured the victim;
the suspect has a history of violence or abuse against the victim;
the suspect was unknown to the victim;
the suspect received a financial reward for their actions;
the suspect deliberately used excessive violence or force causing unnecessary or prolonged suffering;
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. [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.]
A prosecution is less likely to be required if: [2]
the victim had reached a voluntary, clear, settled and informed decision to end their life;
the suspect was wholly motivated by compassion;
the victim was seriously physically unwell and unable to undertake the act;
the actions of the suspect may be characterised as reluctant, in the face of a determined wish on the part of the victim to end their life;
the suspect attempted to take their own life at the same time, in pursuance of a suicide pact;
the suspect reported the death to the police and fully assisted them in their enquiries into the circumstances and their part in it.
These lists of public interest factors are not exhaustive. Although there may be factors tending against prosecution in a particular case, prosecutors should still consider nevertheless whether a prosecution is in the public interest, and for those factors to be presented to the court for consideration. The proposed guidance can be found here and the consultation can be found here.
References:
[1] CPS, ‘Proposed changes to ‘Homicide: Murder and Manslaughter’ Guidance’ <https://www.cps.gov.uk/proposed-changes-homicide-murder-and-manslaughter-guidance> accessed on 19 January 2022
[2] Ibid.