I wrote some time ago [see my article Stand not on the order of your going] that the criminal law should not be involved in assisted suicide, and that the Suicide Act 1961 should be repealed. I am flattered to read that the aptly named Lord Judge, the Lord Chief Justice of England and Wales, has joined the debate and thrown the full weight of his authority behind my proposals.

But in his review, Lord Judge highlighted the dilemma facing the courts in the event of a prosecution, namely that the courts have only limited powers to intervene, and these must be judiciously exercised. It is all well and good for his lordship to pontificate on the role of the court to “prevent or extinguish the effect of any arbitrary or unprincipled exercise by the Director of Public Prosecutions of his responsibilities,” but in reality, unless the prosecution is brought with mala fides or is oppressive or vexatious, there is little the court can do to prevent or extinguish a prosecution until it has run its course.

This means that the inevitable distress caused to the arrested person cannot be avoided whilst the police carry out their investigation, the suspect is questioned under caution and charged, and a date set for a preliminary hearing. At this stage, the court may make its views known about the wisdom of proceeding to trial, but the final decision rests with the prosecution, and the only weapon in the court’s armoury is the threat of wasted costs.

If the prosecutor so determines, the case will go to trial, and few judges with a vested interest in their index linked pensions are prepared to put their heads above the parapet. It is only at the conclusion of the prosecution case that the judge can then intervene and direct the jury to acquit, but again, the power to do so must be based on the evidence, and not on sentiment, and if there is sufficient evidence to establish a prima facie case, the trial must proceed to its conclusion. The defendant must then hope there are sufficient members of the jury belonging to the lobby group Dignity in Dying to secure an acquittal. If, however, the jury is peppered with followers of the lobby group Right to Life, then a guilty verdict is a real possibility. And so it goes on.

As I wrote last October, the simple solution is to decriminalise assisted suicide and repeal the Act, but sadly, the government have bigger fish to fry, and there are no plans to review it. Such a pity, when the government can make available seven hundred hours to debate the hunting of foxes, and when the vast majority of the great British public couldn’t give a rat’s crap. Strange priorities, strange government.

POSTSCRIPT: Excitement mounts to fever pitch. Jacqui Smith, the hitherto invisible Secretary of State for Home Affairs, has actually been spotted, albeit briefly, outside a run down tenement building in a district of London called Nunhead, wherever that may be, claiming to be permanently resident there when the House of Commons is in session. She was followed to the building by the usual media scrum, and guess what?? She spent several minutes fumbling at the door with a key that didn’t fit, trying to gain access to her ‘permanent’ residence. There’s more to this upstanding public servant than meets the eye!

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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