The Barrister Bard

Assisted suicide, mercy killing, euthanasia, call it what you will, simply won’t go away, and it promises to run and run for years to come.

In the recent past, we have been treated to the outpourings of Martin Amis and Terry Pratchett on euthanasia and assisted suicide, and both merit our careful consideration.

Martin Amis, I suspect with tongue in cheek, advocates “euthanasia booths” on street corners where the elderly can end their lives with a martini and a medal. He predicts a “silver tsunami” of increasingly elderly and thoroughly useless people, stinking out the restaurants and cafés and shops, in constant conflict with the younger generation. He has a point, although not attractively made. More and more of our precious resources will have to be devoted to them, from the doctor’s surgery, to the hospitals, to the care homes and finally to the hospices. And as we all know, the state pension was devised to support the elderly into their mid seventies, not into their eighties and nineties.

I live in a retirement area, and although I am not in the first blush of youth, I find that the elderly can be unintentionally irritating on many levels. Driving behind them is an ordeal, queuing behind them at the checkout whilst they count out every penny, dodging their electric carts as they trundle down the pavement with a miserable expression fixed, rictus like, on their faces, all this and more is enough to test the patience of a saint. But beneath these petty irritations lies a deeper malaise. Medical science may well keep us going for longer and longer, but sadly, without the quality of life, it seems so terribly pointless. This is, or should be, the nub of the debate.

Terry Pratchett speaks with greater conviction, as he is in the early stages of Alzheimer’s disease, and in his opinion, a fate worse than death. He is probably right. His aim is for a good and rich life well lived, and at the end of it, in the comfort of his own home, and in the company of loved ones, to have a death worth dying for.

And finally, we now have yet another “clarification” of the law on assisted suicide by Keir Starmer, the Director of Public Prosecutions. It is not his fault, because he has been passed the poisoned chalice, but his “clarification” is meaningless. He simply repeats what we already know, that each case is unique, and each case must be considered on its own merits. We already know that Debbie Purdy’s husband will not be prosecuted if he assists in her suicide, and I like to think that all who fall into this category will also escape prosecution, but there is no guarantee. To put it bluntly, it is not a guarantee that any law officer can give.

All these are noble sentiments, expressed as they are against the backdrop of a society where old age is to be despised, not revered, and where elderly relatives are shipped out at the first sign of inconvenience, not to mention incontinence.

But back to the nub of the debate. It matters not to which God we address our prayers, there remains a fear of the unknown, and a fear of dying. It was Edward Fitzgerald who wrote:

“Strange, is it not? That of the myriads who before us have passed the door of darkness through, not one returns to tell us of the road, which to discover, we must travel too.”

But above all, and the strongest argument against euthanasia, or mercy killing, or assisted suicide, is to decide when the time is right, and most important of all, to decide who decides. Those suffering a terminal illness have been known to recover, as have those in a deep and apparently irreversible coma. Those, like Terry Pratchett, may still enjoy a quality of life, even in the advanced stages of Alzheimer’s, and once Terry gets there, and is presumably incapable of deciding when the time is right, who in the company of those he loves decides when to pull the plug? And is it ever possible to escape the suspicion, real or imagined, that this merciful release was not motivated by self interest on the part of those who remain behind? And how is it to be done? On a show of hands?

The same with Martin Amis’s euthanasia booths. If you are well enough to walk into such a booth under your own steam and of your own volition, you are presumably well enough to live another day.

There is no easy answer. I do not hold a torch for either side of the argument, as I can see the strengths and weaknesses of both. But we must ask ourselves one question. When we are old and frail, and perhaps lacking the quality of life we once enjoyed, is it not better to allow the forces of nature to decide our going, even if, to some, we should have gone a long time ago? I am not sure if I am ready to have my nearest and dearest circling my death bed like some carrion crow, ready to pick over the bones of my rotting corpse.

I make no apologies for borrowing the title from a recent Times leader comparing the Chilcot inquiry to the Muppet Show, and the subtitle “At every turn, the Chilcot inquiry into the Iraq War has been lower than farce. To call the inquiry “a farce” would be to endow it with a gravitas it does not deserve.” Amen to that.

I am totally bemused by the predilection of a section of the Great British Public to wallow in these endless inquiries, as if somehow they are relevant and ground breaking, and more to the point, that something relevant will emerge. It happened with Diana, now it’s happening with Iraq. For the most part, they fill a void in the ongoing Media circus when ‘real’ news is at a premium.

But for the lawyers amongst you, the inquiry and its conclusions could indeed be ground breaking and I wonder if any thought has been put into the “farce” which might result.

Consider the possibilities. If the Iraq War was indeed illegal, all those who served in the armed forces during the invasion are liable to be prosecuted under the War Crimes Act 1991. This useless and misconceived piece of legislation makes it possible to prosecute UK residents who have committed illegal acts of war anywhere in the world, as witness the absurd and meaningless prosecution of Anton Sawoniuk, a UK resident who had allegedly shot dead a handful of Jews during the Second World War whilst serving with the German army of occupation. The date, as far as it could be agreed, was 1942, and the place was Belarus.

We also know that the defence of “just following orders” is not available, and hasn’t been since the Nuremburg trials in 1946, so we have the picture of thousands of British military personnel being prosecuted for war crimes and facing lengthy sentences of imprisonment. It beggars belief!

Then there is the question of collective responsibility. There is a convention that decisions taken in Cabinet abide by the principle of collective responsibility, and no matter how much those then members of government may now wriggle and squirm to distance themselves, a thoroughly unedifying spectacle, they are tarred with the same brush as Tony Blair, the Prime Minister at the time. So they too face collective prosecution. And what about the Members of Parliament who voted for the war? English law does not acknowledge ignorance as a defence, so they too are at risk of prosecution as they too voted for an illegal war. Those at risk come from both of the main parties, with only the Lib Dems whiter than white. So the two main parties may be prevented from putting forward candidates at the General Election who voted for the war, which gives the Lib Dems a clear run at elected office for the first time in nearly one hundred years. It’s too frightening even to contemplate.

Keir Stramer, the hitherto anonymous Director of Public Prosecutions, is going to be rushed off his feet, where before, his only contribution to the smooth running of the criminal justice system was to pontificate on assisted suicide. In that respect, if the latest farrago is to be believed, his attempts at clarity have fallen on deaf ears.

And finally, what about the victims of war, both during and after the conflict? By all accounts, thousands of Iraqis perished, or were maimed, in the course of an illegal war, so they too will be looking for compensation, and may have to be called as witnesses in the myriad of prosecutions which should flow if the war is deemed illegal. They will have to appear as witnesses in an English Court to give evidence, and the chances are that many of them will simply disappear into the ether, or claim political asylum, or both, which in turn will tie up the Immigration Service for years to come. And worse still, the compensation ‘pot’ will bankrupt this country at a time when borrowing is at an all time high. According to the remit of the Criminal Injuries Compensation Authority, the body charged with distributing compensation to victims of crime, the compensation awarded to the relatives of those killed illegally will reach five and six figure sums.

I conclude with the closing remarks of The Times leader: “This inquiry is an expedient born of political weakness and intended to defuse a debilitating public controversy. It has not worked. It cannot work.” To quote Statler and Waldorf from the Muppet Show:

“I guess all’s well that ends well,” says Statler.

“Doesn’t matter to me,” says Waldorf, “so long as it ends.”

The law on assisted suicide is now a complete shambles. Within the space of a week, one woman is convicted of murdering her terminally ill son, and has to serve at least nine years behind bars, the other woman is acquitted of attempted murder, to spontaneous applause, and the judge criticises the Crown Prosecution Service for bringing the charge in the first place. So why didn’t he stop it?

For those who had thought that Keir Starmer, the ‘quiet’ and all but invisible man in charge of the CPS, would shine his light into the dark recesses of the law on assisted suicide, there is a genuine sense of disappointment. His attempts at clarification have been anything but, leaving the CPS and the courts to square the circle and failing miserably.

The problem with this unholy mess is that nobody is willing to stand up and be counted. In the two most recent cases, the grief of caring mothers nursing their terminally ill children cannot be overstated, and yet they, and not the medical profession, must shoulder the burden of mixing the drugs and administering the fatal dose. Where is the qualified doctor when you need him? If recent events are anything to go by, he’s in Germany, in possession of a smattering of English and only three hours sleep. Why can’t they take the lead and actually help, instead of washing their hands?

The CPS also has to take its share of responsibility, and not shift the decision making to the judge and jury. In the case of the woman charged with attempted murder and gloriously acquitted, why didn’t the CPS heed the strictures of the judge? A classic case of buck passing, which simply shouldn’t happen. The responsibility for seeing that justice is done rests in the hands of twelve men and women who have no legal or medical knowledge, and who are as likely as not to reach their verdict with the toss of a coin.

And what about the judge? Another classic case of buck passing. The rules state that if there is a case to answer, then it must be answered by the jury. But there are weak cases which cry out for judicial intervention, so why not intervene? The trial judge was eminently placed to do so, and yet he fudged it. Why? He must have been aware of the criticisms of his learned colleague. In the name of humanity, stand up and be counted!

So this unholy mess is dumped back into the laps of the politicians, who have bigger fish to fry, and in the case of this dying government, plans to make when they are thrown out of office. If ever there was a case for assisted suicide, this government would come high on the wish list of most of the electorate. But with Jack Straw, the Minister for Justice, his silence is underwhelming.

There is nothing the public likes more than salacious revelations about the rich and famous, and Marco Pierre White’s messy divorce ticks all the boxes. But from a legal perspective, it has added spice.

For those of you who get your nightly television fix from celebrity chef programmes, you will know that Marco is one such chef, cutting and chopping and sprinkling and seasoning at a frenetic pace, and all for our edification. For my part, I’d rather dine with them than match them pot for pot.

It all revolves around the right of Mrs. “Mati Hari” White to intercept letters and documents belonging to Marco, with the ostensible aim of proving that he is being economical with the truth in declaring his assets, a large portion of which has been earmarked by her as part of the divorce settlement. It also revolves around the part played by her legal advisers in condoning such behaviour.

Act One of this unsavoury saga began in the High Court in 2008, when Marco lost his privacy action against her lawyers following the interception of his private documents. The action was heard by Mr. Justice Eady, who, along with Mr. Justice Collins, is criticised for making the law “on the hoof.” Mr. Justice Eady, you will remember, ruled in favour of Max “Spanker” Mosley and his right to a sadomasochistic private life. Sich Heil!

Anyway, back to the plot. Eady J could find nothing objectionable in Mati Hari’s conduct, and told Marco to get stuffed. But in the way of things, when money is no object, Act Two unfolded in the Court of Appeal, when their lordships ruled in his favour and told Eady J to get stuffed, in the nicest possible way, of course. At the same time, they gave Mati Hari’s solicitor a verbal tongue lashing and questioned his professional judgment.

Washing around this pot pourri is the landmark case of Hildebrand –v- Hildebrand in 1992, now referred to as the Hildebrand Rules, which condoned the practice of spouses intercepting and copying documents in divorce proceedings BUT with the caveat that such documents must always be returned as soon as possible. A very messy business, but in the great scheme of things, especially in high value divorces, sometimes necessary, albeit unsavoury.

Where Mati Hari’s solicitor went horribly wrong was withholding an intercepted letter from Marco’s daughter, deeply personal in nature and which had absolutely nothing to do with the divorce proceedings. He and his firm now face a possible action for invasion of privacy, substantial damages and even a possible criminal charge.

By all accounts, divorce lawyers are having a major fit of the vapours, but as the saying goes, they’ve brought it on themselves. The Rules are quite clear. Everything must be above board and beyond reproach. If documents are relevant to the issues in the proceedings, by all means produce them, but never withhold them.

Sadly, when love flies out the window, so does reason, and human nature being what it is, there will always be abuses of the Rules. But divorce lawyers have nothing to fear if they give their clients proper and competent advice. That’s their job, and if they fall down on it, they have only themselves to blame.

My advice to lawyers is always the same – don’t get emotionally involved. Leave that to the client.

The impending fourth trial of the “Heathrow Four” is causing quite a buzz, given the recent decision of the Court of Appeal to deny them trial by jury.

Some of the statistics behind this case are mind boggling. The “Heathrow Four” are charged with taking part in a robbery at Heathrow Airport back in 2004, which netted them £1.75 million. They have to date had the benefit of three trials, all before a jury, and costing the taxpayer £22 million and counting. The last trial was aborted when there were grave suspicions of jury tampering, although the details are far from clear.

The latest episode in this long running saga unfolded in the Court of Appeal back in June last year, when their lordships were asked to rule on the provisions of the Criminal Justice Act 2003. Those provisions allowed for trial by judge alone where there was a real and substantial risk of jury tampering. In short, they ordered the fourth trial, and hopefully the last, to proceed without a jury.

Their lordships considered the cost of protecting the jury, which was estimated between £1.5 million and £6 million, depending on the level of protection offered. The cost was not the overriding factor, nor the questionable use of police manpower and resources estimated between 36 and 82 officers who might otherwise be gainfully employed issuing parking tickets or “on the spot” cautions, but this was all grist to the mill.

The Press and Media have been flooded with comments and opinions from professionals and laymen alike. Needless to say, the professionals, in the form of criminal barristers, are to a man against the ruling, trotting out the usual platitudes about Magna Carta, human rights and fundamental freedoms, but then, they would, wouldn’t they? After all, whoever heard of turkeys voting for Christmas? There is this quaint belief, based on little reliable evidence, that those accused of crime are more likely to receive a fair trial by jury than by judge alone. I suspect this is code for the belief that juries are more likely to acquit than judges, but this is pure speculation.

I have argued in previous articles that trial by jury is coming to the end of its sell by date. By all accounts, their attention span is getting shorter and shorter, and sadly, with the deplorable lack of state education, semi literate or worse still, completely illiterate. Jurors who are able to give up six months of their time to sit in judgment on the “Heathrow Four” are unlikely to be at the cutting edge of the economy, or in gainful employment.

We need a complete rethink about crime and punishment, and not just as a cost saving exercise. As things stand, less than 10% of all criminal cases are tried by juries. The vast majority are tried by magistrates. I propose a reclassification of “either or” offences, those where the accused can elect trial by jury in the crown court, to include all offences where the maximum sentence does not exceed five years. I would leave it to the discretion of the magistrates to commit the accused to the crown court for trial if they felt it was in the interests of justice to do so, but that would be their decision, having heard argument from both sides.

I would increase the sentencing powers of the magistrates to a maximum of 12 months imprisonment from the present maximum of 6 months. These minor amendments would reduce the prison population dramatically, almost overnight, and leave the crown court to deal with the most serious offences.

I would abolish trial by jury, and replace it with trail by judge and assessors. It works perfectly well elsewhere, and I am far from persuaded that the Magna Carta has any relevance today as the cornerstone of the ‘subject’s’ constitutional rights in the face of an oppressive state.

Time to debunk the myth surrounding trial by jury, and let’s get real.