KEIR STARMER QC
1.This case concerns the investigation by the West Mercia Constabulary into possible offences of aiding and abetting a suicide, following the death in Switzerland on 12 September 2008 of Daniel James. Daniel was 23 years old at the time of his death. He had sustained a serious spinal injury in a rugby accident in March 2007, which resulted in him suffering from tetraplegia. Daniel travelled to Switzerland with his parents in order to end his life. He carried out his wishes at premises operated by the Dignitas organisation. The police have investigated the acts of Daniel’s parents and a family friend. I have concluded that there would be sufficient evidence to prosecute each of them for an offence of aiding and abetting Daniel’s suicide, contrary to section 2(1) Suicide Act 1961, but that, on the particular facts of this case, a prosecution would not be in the public interest. The following paragraphs explain the reasons for my decision.
2. Daniel Mark James was born on 17 February 1985. At the time of his accident, he was in the third year of a Construction Engineering degree course at Loughborough University. Daniel was a talented rugby player, selected for the University 1st XV in his first year and he played on eight occasions for England youth teams.
3. Daniel was injured in a training session at Nuneaton Rugby Club on 12 March 2007. He was taken to hospital where tests and scans revealed a dislocation of the C6 and C7 vertebrae and spinal cord compression. He was transferred to the National Spinal Injuries Centre at Stoke Mandeville Hospital in Buckinghamshire and remained under the management of a Consultant in Spinal Injuries, until he returned to live at home on 28 November 2007.
4. Despite every effort to alleviate the situation, Daniel was diagnosed as tetraplegic, paralysed from the chest down and with no independent hand or finger movement albeit he retained normal mobility and strength in his shoulders biceps and triceps. By November 2007, the Consultant had concluded that it was unlikely that there would ever be any significant improvement in Daniel’s neurological status, saying “There is no cure for complete spinal cord injury at this stage and unfortunately there is no treatment available to either aid or produce recovery”.
ATTEMPTS TO COMMIT SUICIDE
5. The impact of his injuries on Daniel was profound. In the early months he gave his all to prove the medical prognosis incorrect, but ultimately he came to accept that his condition would never improve.
6. Daniel became suicidal, driven by his distress at his predicament and his dependency on others. To his consultant psychiatrist, he described himself as a “dynamic, active, sporty young man who loved travel and being independent” and that “he could not envisage a worthwhile future for himself now”. Daniel frequently stated his wish that he had died of his injuries on the rugby field and that he was determined to end his own life. He made several attempts to do so.
CONTACT WITH DIGNITAS
7. One week after a third failed suicide attempt, Daniel contacted Dignitas in Switzerland on 20 February 2008 asking for assistance in dying. As he put it, “The primary reason I wish for your help is simply that I want to die, and due to my disability I am unable to make this happen … Not a day has gone by without hoping it will be my last … I do not want another failed attempt”. Dignitas sent him a welcome letter and a statement of account.
8. On 9 May 2008, Dignitas wrote to Daniel to inform him that a local doctor had considered his case and had given consent for the necessary barbiturate prescription to be written. The letter explained the options available. Daniel chose to meet the local doctor twice in three days, then undertake the assisted suicide procedure on the following day.
9. On 25 July 2008, Dignitas wrote to Daniel to request him to sign and return an authorisation form and on the same date, his schedule was sent to him. The final procedure would be carried out at a Dignitas apartment at 11am on Friday 12 September.
10. During the making of these arrangements, various individuals, including Daniel’s parents and health professionals, tried in vain to persuade him to change his mind. Daniel remained resolute that no professional body could help him and that no-one would change his mind. As his psychiatrist put it in a report dated 2 July 2008, Daniel James “clearly understood that no other parties, be they professionals or family members wished him to pursue this course of action and was clearly aware that he could reverse his decision at any point. He remained firmly of the opinion that support from any agency would not be helpful for him or change his decision”.
11. Daniel’s parents were particularly distressed by his wish to end his own life. They tried relentlessly to persuade him not to do so. As Daniel’s father put it in interview, “We pleaded with him not to do it and change his mind and live … we were all so upset but at the end of the day it was what he wanted”. Later he added, “Even up to the last second … I hoped he’d change his mind … and my wife … I know she felt exactly the same … There would be nobody happier to hear him say he’d changed his mind and he didn’t want to do it”.
12. However, Daniel’s parents came to accept his wish to travel to Switzerland to commit suicide and although it was against their own wishes, they began to assist him in his correspondence with Dignitas. They also agreed to accompany Daniel and to that end they organised flights and arranged for appropriate carers to be available to assist their son with his daily routine.
13. From a very early stage a family friend had offered assistance to Daniel. What he initially had in mind was organising flights for Daniel to see consultants anywhere in the world if that became necessary. Once Daniel had determined that he wanted to travel to Switzerland to commit suicide, his parents took up the offer of assistance. The friend arranged a flight to Zurich returning to Bristol. He also booked Daniel a return flight in case he changed his mind.
EVENTS IN SWITZERLAND
14. Daniel and his parents attended the two consultations. The conversation was mostly between Daniel and the doctor. It remained clear that Daniel would not change his mind.
15. On 12 September 2008 Daniel attended the clinic with his parents where a doctor helped him to take his own life. His parents were with him when he died. A death certificate confirmed that Daniel’s death was ‘non-natural’.
16. Daniel was assessed by a Consultant Psychiatrist on a number of occasions. In her report dated 31 January 2008, the Consultant Psychiatrist observed:
“Daniel’s parents stated clearly that they had now come to accept his wish to die. It was evident that they were not planning to assist Daniel and would ensure that obvious means of suicide were kept out of Daniel’s way, but were prepared to accept the responsibility that Daniel may at some future point attempt or succeed to take his own life at home.”
17. The Consultant Psychiatrist saw Daniel again at his home on 22 February 2008. She spent an hour with Daniel who was clear about his wish to die, and was also clear that this was not something he wanted to do by his own hand, particularly for the sake of his family, unless there was no other option available to him. The Consultant Psychiatrist concluded, in her report dated 11 March 2008:
“In summary, with the benefit of having assessed Daniel on several occasions over a period of time, I am of the opinion that he has full capacity to make decisions about his medical treatment. He is fully aware of the reality and potential finality of his decision, displays clear, coherent, logical thinking processes in order to arrive at his decision and has clearly weighed alternatives in the balance.”
18. Following Daniel’s acceptance by Dignitas, doctors carried out a review of Daniel and it was agreed that Daniel continued to have the capacity to make decisions with regard to medical treatment and that his decision to engage Dignitas was not being driven by a mental illness.
19. On 27 August 2008, Daniel signed a declaration, witnessed by his doctor, that he wished to travel to Switzerland for an assisted suicide and for his body subsequently to be returned to England.
POST MORTEM EXAMINATION
20. Daniel’s body was not subjected to a full forensic post mortem examination on his return to the UK but post mortem blood samples were analysed which disclosed a fatal level of a form of barbiturates typically used for this type of procedure in Zurich.
21. Section 2(1) Suicide Act 1961 provides:
“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”
In order to prove the offence of aiding and abetting Daniel’s suicide, it would be necessary to prove firstly that he took his own life and, secondly, that an individual or individuals had aided and abetted Daniel in committing suicide.
22. The fact of the suicide can be established by the evidence and I am satisfied that these elements enable the conclusion properly to be drawn that, beyond reasonable doubt, Daniel James died as a result of suicide.
AIDING AND ABBETING
23. The mental element that has to be proved is an intention to do the acts which the individual in question knew to be capable of helping, supporting or assisting suicide. The question is therefore whether by their various acts Daniel’s parents or the family friend did, in fact, help, support or assist Daniel James to commit suicide and whether, when they did so, they knew that their acts were capable of helping, supporting or assisting him to do so.
24. Although it is necessary to examine the actions that each suspect/defendant has taken, it is clear that the actions of Daniel’s parents were taken jointly. There is not absolute clarity from their interviews as to which of them did what, but there is compelling evidence of joint enterprise.
25. The acts that have taken place within the jurisdiction to aid and abet Daniel’s suicide are:
- assisting him to send documentation etc to Dignitas;
- making payments to Dignitas from their joint bank account;
- making the travel arrangements to take Daniel to Switzerland;
- accompanying him on the flight.
Having considered these acts, I am satisfied that the evidential test under the Code is met.
26. Against that background, I have decided that, although neither of them assisted in the act of suicide itself, there is, on a purely objective analysis, enough evidence to provide a ‘realistic prospect of conviction’ against Daniel’s parents under section 2(1) Suicide Act 1961.
THE FAMILY FRIEND
27. His involvement is significantly less than that of Daniel’s parents. However, for the same reasons as apply to them, I have decided that his actions in arranging the flights and paying for those flights, knowing the purpose of the visit to Switzerland, are sufficient to provide a realistic prospect of conviction against him in relation to an offence of aiding and abetting Daniel James to commit suicide.
28. I remind myself that paragraph 5.7 of the Code for Crown Prosecutors (the Code) states that, “A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour “. Moreover, the more serious the offence, the more likely it is that a prosecution will be needed in the public interest.
29. I consider that the offence of aiding and abetting the suicide of another under section 2(1) Suicide Act 1961 is unique in that the critical act – suicide – is not itself unlawful, unlike any other aiding and abetting offence. For that reason, I have decided that many of the factors identified in the Code in favour or against a prosecution do not really apply in this case (I include within this the factors identified in paras.5.9 (b), (c), (d), (e), (j), (k), (m), (n) and (p) and 5.10 (b), (c), (d), (e), (f), (g), (h) and (i) of the Code).
30. So far as the factors in favour of prosecution are concerned, I consider that para. 5.9(a) – whether a conviction is likely to result in a significant sentence – is relevant, but I have decided that it is not a factor in favour of prosecution in this case. On the facts set out above, I consider it very unlikely that a court would impose a custodial penalty on any of the potential defendants. None of the factors identified in Wallis (1983) 5 Cr App R (S) 342 or Hough (1984) 6 Cr App R (S) 406 apply and in all probability the sentence would be either an absolute discharge or, possibly, a small fine.
31. Although Daniel James’ parents played some part in the co-ordination of the arrangements, I have decided that they were not ‘ringleaders’ or ‘organisers’ in the sense meant by para.5.9 (f) of the Code; nor was the offence premeditated in the sense meant by para.5.9 (g) or a ‘group’ offence in the sense meant by para.5.9 (h). There are no grounds for believing that the offence is likely to be repeated – a factor under para.5.9 (o). More relevant are the factors identified in paras.5.9 (e), (i) and (l).
32. The factors in paras.5.9 (e) and (l) can be taken together. Although as parents they were in a position of trust (para.(e)) and markedly older than Daniel (para.(l)), it is clear that Daniel was a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment whose determination to commit suicide was not in any way influenced by the conduct or wishes of his parents – on the contrary he proceeded in the teeth of their imploring him not to do so. The same point can be made about para.5.9(i) of the Code. On that basis, I consider that, although Daniel was vulnerable in many senses, he was not vulnerable to manipulation by his parents or the family friend. I have also considered para.5.9(q) and believe that, in the circumstances that exist here, a prosecution would not be likely to have a significant positive impact on community confidence.
33. Overall, therefore, apart from the important fact that an offence under section 2(1) Suicide Act 1961, which has a maximum penalty of 14 years imprisonment, is serious, involving as it did the loss of a life, I have decided that very few of the factors identified in para.5.9 of the Code point in favour of a prosecution in this case.
34. Turning to the factors identified in the Code as against prosecution, para.5.10 (a) is relevant (whether the penalty is likely to be nominal), and, for the reasons set out above, I have decided that it is a factor against prosecution in this case. Para 5.10 (c) may also apply to the family friend since it appears that he genuinely did not appreciate that, as a matter of law, in organising flights he was assisting in Daniel’s suicide. However, I have not attached much weight to that.
35. I remind myself that the factors identified in the Code in favour or against a prosecution are not exhaustive of the public interest factors that may be relevant in any given case. It is also important to keep in mind that Parliament has chosen to retain section 2(1) Suicide Act 1961 and a decision not to prosecute should not be taken merely because there are powerful mitigating circumstances. However, I consider that a factor that is otherwise relevant does not cease to be relevant merely because it overlaps with, or might be relevant to, mitigation. I have therefore focussed intensely on the particular facts of his case.
An offence under section 2(1) Suicide Act 1961 is serious. That points in favour of a prosecution.
Neither Mark and Julie James nor the family friend influenced Daniel James to commit suicide. On the contrary, his parents tried relentlessly to persuade him not to commit suicide. Daniel was a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment. There is clear evidence that he had attempted to commit suicide on three occasions and that he would have made further attempts if and whenever an opportunity to do so arose. On the facts of this case, these are factors against prosecution.
Although the evidential test under the Code is met, a wide range of conduct of varying degrees of culpability is caught by section 2(1) Suicide Act 1961 and, although not truly minor acts, on the facts of this case the conduct of Mark James, Julie James and the family friend was more remote than the acts under consideration in Wallis and Hough and towards the less culpable end of the spectrum. That is a factor against prosecution.
Neither Daniel’s parents nor the family friend stood to gain any advantage, financial or otherwise, by his death. On the contrary, for his parents, Daniel’s suicide has caused them profound distress. That is a factor against prosecution.
36. Taking those factors into account and bearing in mind the observation of Lord Lane CJ in Hough that in enacting section 2(1) Suicide Act 1961, “Parliament had in mind the potential scope for disaster and malpractice in circumstances where elderly, infirm and easily suggestible people are sometimes minded to wish themselves dead”, I have decided that the factors against prosecution clearly outweigh those in favour. In the circumstances I have concluded that a prosecution is not needed in the public interest.