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Christina Courquin, pupil, considers the CPS consultation on the proposed revision to its legal guidance in respect of homicide in the case of mercy killings.
Imagine you are the parent of a child who has suffered with ME for the past 17 years. They are bed ridden and, as a result, you care for them 24 hours a day while they suffer. There is no cure. Imagine that same child has made several requests to die and so, in order to end their suffering, you carry out the act yourself to make their final moments as peaceful and painless as possible.
In the case of Kay Gilderdale, it was not a case in her imagination, but her real life and a prime example of a mercy killing; a killing in which the suspect believes they are acting wholly out of compassion for the deceased.
Compassion is not a defence in law. Regardless of whether the victim expressed a wish to die, perhaps because they are seriously physically unwell and unable to undertake the act themselves, the person who commits the act can be prosecuted for murder or manslaughter.
The Crown Prosecution Service (‘CPS’) has recently opened a public consultation on a proposed revision to its legal guidance on Homicide: Murder and Manslaughter, intending to assist prosecutors on the public interest factors relevant when considering a death arising from a mercy killing. The consultation is open until 8th April 2022.
The proposed update to the legal guidance is designed for prosecutors who have been asked either for a charging decision or for early advice by the police. In these situations, prosecutors may need to decide whether the legal test for criminal charges has been met which will, in turn, include deciding whether it is in the public interest to charge a suspect.
The Public Interest Test
When deciding whether to prosecute a mercy killing, prosecutors must apply the Full Code Test as set out in the Code for Crown Prosecutors.
The Full Code Test has two stages:
If there is sufficient evidence to justify a prosecution after the first stage, prosecutors must go on to consider whether a prosecution is required in the public interest.
The CPS has proposed a number of public interest factors that prosecutors should consider before charging a suspect with murder or manslaughter, when the suspect believes they were acting wholly out of compassion for the deceased.
The draft guidance sets out eleven factors which weigh in favour of prosecution, including if:
There are also six proposed factors which militate against prosecution, namely if:
These proposals appear to be a starting point in preventing the unnecessary prosecution of genuine mercy killing cases. However, it is difficult to assess whether the level of protection of these proposed guidelines will be sufficient to shield those responsible for mercy killings from facing a gruelling murder or manslaughter trial.
Bipin Desai (unreported 17th November 2017) was charged with the murder of his father. In his police interview, Mr Desai gave evidence that his father had, for a very long period of time, lost the will to live and that he had reluctantly agreed to help him. As a pharmacist, Mr Desai had access to the controlled drug Oramorph, which in a sufficient dose is lethal. He mixed a high dose of the drug in a fruit smoothie and gave it to his father to drink. His father very shortly afterwards fell asleep. Mr Desai then came back later and administered insulin through an injection. He did not tell his wife or family and attempted to keep his actions secret because he did not wish to get into trouble.
At trial, Mr Justice Green found that there was no case to answer upon the murder charge and, as a result, Mr Desai was found not guilty on that count. However, taking this case in light of the new proposed guidelines, would it have ever reached trial?
It is not clear whether, under the new guidelines, a suspect’s word alone will be enough to satisfy the new public interest test that the suspect was wholly motivated by compassion when carrying out the killing, or whether a substantial amount of material evidence will be needed either to support the case for compassion, or to suggest that the deceased voluntarily consented to the killing.
If the latter is the case, then in a case like Mr Desai’s, the proposed reforms may do little to provide protection to those who carry out mercy killings, unless it is established in the guidance what evidence would be required to support the proposition that the suspect was acting out of compassion or consent. Without knowing what evidence is necessary in advance of the killing, the suspect may risk still becoming a defendant and face the risk of serving a sentence for either murder or manslaughter.
A New Statute
Even though the new CPS proposals aim to prevent cases of mercy killings from reaching the trial stage (and therefore the sentencing stage), there may still be cases which fall through the gaps. This begs the question of whether a statute creating a new offence is needed specifically designed to cover allegations of mercy killing for those cases which do proceed to trial.
A new statute would certainly provide more certainty in the way that mercy killings would be sentenced. Currently, the Sentencing Act 2020 deals with the sentencing of those convicted of murder – where the killing was an act of mercy – in a confusing and contradictory manner.
Schedule 21 of the Sentencing Act 2020 assists with the determination of minimum term in relation to mandatory life sentences for murder. Paragraph 10 states that mitigating factors that may be relevant to the offence of murder include:
(f) a belief by the offender that the murder was an act of mercy.
However, paragraph 9 of the same schedule states that aggravating factors that may be relevant to the offence of murder include:
(d) The abuse of a position of trust
All three of these aggravating factors are likely to be present in the case of a mercy killing, presenting an unavoidable issue when it comes to sentencing. Lord Judge CJ highlighted this matter in R v Inglis  EWCA Crim 2637 stating at paragraphs 51-52:
“It would be wholly unrealistic to treat precisely the same actions as both aggravating and mitigating features. In the vast majority of cases where the offender genuinely believes that the killing is an act of mercy, he or she will intend death, there will often be significant planning or premeditation and the victim will always be particularly vulnerable (because otherwise the question of killing as an act of mercy would not arise) and, almost inevitably, at the time when the killing takes place, the perpetrator will be in a position of trust.
This is a prescriptive statutory sentencing regime, which on occasion creates difficulty and dilemma”.
This difficulty and dilemma may be resolved if the law is reformed by way of new statute. The question is – will mercy killings ever become a separate offence in its own right? Certainly, a new statute could prove clear sentencing principles and specify the exact components of the offence which would lead to a prosecution. Further, a statute would give democratic legitimacy to the reform which a CPS consultation will not do. After all, the consultation aims at revising the legal guidance on the prosecution of Homicide: Murder and Manslaughter, not revising the law itself.
Christina Courquin is a pupil at Mountford Chambers, currently under the supervision of Joe Hingston. Prior to pupillage, Christina worked as a paralegal at a legal aid firm in London, specialising in international child abduction and child-care cases.
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