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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(8) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(8).html
Cite as: [2005] EWLC 177(8)
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PART 8 KILLING WITH CONSENT AND DIMINISHED RESPONSIBILITY
QUESTIONS AND PROVISIONAL PROPOSALS
8.1 We ask:
Suicide pacts
(1) Should killing in pursuance of a suicide pact (Homicide Act 1957, section 4) continue to be a separate, lesser offence of homicide?
[paragraphs 8.19-8.37, 8.84-8.94]
(2) If your answer to (1) is 'yes', should that lesser offence be "second degree murder", as we are proposing for other partial defences?
[paragraphs 8.19-8.37, 8.84-8.94]
(3) If your answer to (1) is 'no', is our reformed partial defence of diminished responsibility likely to cater adequately for the most deserving cases that currently fall within the scope of section 4?
[paragraphs 8.19-8.37, 8.56, 8.66, 8.82 and 8.84-8.94]
(4) If your answer to (3) is 'no', what, if anything, should replace section 4 (see questions 6 and 7 below)?
[paragraphs 8.19-8.37, 8.56, 8.66, 8.82 and 8.84-8.94]
(5) On an indictment for murder or manslaughter, should it be possible for the defendant to seek to show that he or she was guilty only of complicity in suicide (Suicide Act 1961, section 2), when the conduct that killed the victim was meant by the defendant and by the victim to end both of their lives?
[paragraphs 8.95-8.102]
Killing with consent, when the killer's responsibility is diminished
(6) When someone's diminished responsibility is a significant cause of their conduct in killing, but the killing was also proved to be consensual, should that element of 'double mitigation' mean that the offence should be reduced to manslaughter, and not just to "second degree murder"?
[paragraphs 8.36 and 8.89-8.94]
(7) Alternatively, when someone's diminished responsibility is a significant cause of their conduct in killing, should the fact that the killing was proved to be consensual simply be a factor to be taken account in sentencing, as is currently the approach when the killing under diminished responsibility was a 'mercy' killing?
[paragraphs 8.36 and 8.89-8.94]
8.2 We provisionally propose that:
(1) Section 4 of the Homicide Act 1957 should be repealed. Deserving cases that otherwise would have fallen within it should be pleaded under section 2 of the Homicide Act 1957 (diminished responsibility). This will result in a verdict of "second degree murder" under our proposals.
[paragraph 8.93]
OUR TERMS OF REFERENCE AND THE SCOPE OF OUR CONSULTATION
(1) the latter factors should remain matters solely for sentencing for "second degree murder" when there is proof of diminished responsibility;
(2) they should take the crime one more rung down the "ladder" of seriousness, by reducing the crime to manslaughter;[1] or
(3) whether the crime is best located even further down that "ladder", in the form of complicity in suicide.
HOW THE ARGUMENT PROCEEDS
A BRIEF INTRODUCTION TO THE EXISTING LEGAL PROVISIONS
8.13 Section 4 of the 1957 Act provides that:
(1) It shall be manslaughter and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other … being killing by a third person.
(2) Where it is shown that a person charged with the murder of another killed the other or was party to his … being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.
(3) For the purposes of this section "suicide pact" means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.
8.14 Section 4(2) provides that the accused bears the legal burden of proof.[2]
8.15 Section 2(1) of the 1961 Act made it an offence to be complicit (assisting or encouraging) in another's suicide or in their attempt at suicide. This offence carries a maximum sentence of 14 years' imprisonment compared with a discretionary life maximum for manslaughter when a section 4 plea under the 1957 Act is successful. Section 2(2) of the 1961 Act amended the law to make it possible, on an indictment for murder or manslaughter to bring in a verdict of 'complicity in suicide', if that could be proved.[3]
8.16 An example of a section 4 case is Sweeney.[4] In Sweeney, the defendant was prone to depression and the victim had advanced muscular dystrophy. They took sleeping tablets and paracetamol and sat together in the front of their car after the defendant had poured petrol on and set light to the rear of the car. The intensity of the heat drove them both to attempt to escape, but only the defendant escaped (having received serious burns in an attempt to save the victim). The defendant pleaded guilty to manslaughter.
8.17 Watkins LJ said, in relation to sentence, that it is the policy of the law that even desperate people must be deterred from taking life, and those who contemplated suicide and did not achieve it in a suicide pact would be punished if the other party died.[5] The court pointed out that sentences of two or three years' imprisonment have been upheld as appropriate in such cases,[6] and continued:
He [D] can have escaped [death] only by a hair's breadth. However, that cannot excuse him from entering into a pact which the law forbids. The law does not allow a person to enter into a suicide pact, the consequence of which may be to bring about the death of the two people involved but which may, as happened here, bring about only the death of one. It is very much against the public interest that such as that should happen … [E]ven people like [D] must be deterred from going to the extreme of terminating life.[7]
SHOULD SECTION 4 OF THE HOMICIDE ACT 1957 BE RETAINED?
8.19 Section 4 of the 1957 Act is a curious provision. It may owe its existence, and its special focus on suicide, to the fact that there was a vigorous contemporary debate at that time about the legalisation of suicide. Legalisation seemed inevitable but did not come until 1961.[8]
EXAMPLE 1: D and V are involved in a shoot-out with the police. Eventually, they realise that capture is inevitable. D and V agree that D will kill V and then turn the gun on himself. D kills V, but is arrested before he can turn the gun on himself as agreed.
EXAMPLE 2: D is the leader of a fringe religious cult. He persuades his followers to meet to commit suicide together. At the meeting, with his followers' consent, he pours a lethal poison down their throats but finds he cannot summon the courage to do the same to himself when the moment comes.
8.27 Another example is Dunbar v Plant.[9] In this case, the defendant and the victim had already unsuccessfully tried to suffocate themselves whilst they both sat in a fume-filled car. The victim was subsequently killed when the defendant and the victim both jumped simultaneously from a high beam with bed sheets around their necks in the form of a noose. By way of contrast with Sweeney, this case was dealt with as one of assisting in suicide (the defendant had clearly assisted the victim to commit suicide by providing him with a bed sheet) and not as manslaughter under the 1957 Act.[10]
8.28 'Die together' pacts are not the only kind of suicide pact. As in the recent case of Blackburn,[11] there is also the 'you-then-me' pact (see Examples 1 and 2 in paragraph 8.21). As the name suggests, in this pact the defendant and the victim agree that the defendant will kill the victim by an action or course of conduct separate from an ensuing action or course of conduct in which the defendant seeks to kill him or herself, as by shooting the victim and then shooting himself. In Blackburn, the defendant cut the victim's wrists and then cut his own in an identical way, but his blood congealed and he did not die. The victim had asked the defendant to end her life as she was dying of cancer. She was found to have had a three kilogram tumour in her stomach.[12]
8.29 The Royal Commission on Capital Punishment was well aware of this distinction between ways in which suicide pacts could be executed.[13] Where survivors of 'die together' pacts were concerned, the Commission thought they should not be treated as murderers. It was of the view that the possibility that evidence of pacts would be fabricated by 'real' murderers was no reason to maintain the status quo. It recommended that such cases should be treated as 'aiding and abetting suicide' with a maximum life sentence penalty.
8.30 However, so far as 'you-then-me' pacts were concerned, the Commission took a different view. In the seven cases of this nature that it considered over the preceding 20 years, it considered that in only two cases had the survivor made more than a half-hearted attempt to kill himself.[14] The fact that section 4 speaks of pacts in which the defendant "kill[s] the other" may be thought to suggest that it is only 'you-first-then-me' pacts that were meant to be covered by section 4.
8.31 The Government of the day, however, did not draw a formal distinction between the kinds of suicide pact and, in the course of the Parliamentary debate, there is virtually no discussion of the issue. Clause 4, which became section 4 of the 1957 Act, received almost no attention in either House. Nonetheless, the House of Commons Committee had indicated that it was pleased to see that no distinction had been drawn between the kinds of pact.[15]
8.34 These are, however, relatively fine distinctions. Many people may wish to see all such cases treated in the same (lenient) way as at present.[16] Further, they may wish to see them treated alike, whether or not the defendant can show that his or her action was influenced by a specific mental disorder or illness. It can simply be assumed that utter despair led the defendant and the victim to choose a course of action so extreme as a suicide pact. The existence of the pact in itself shows the kind of subjective emotional pressure under which the defendant must have acted if it is to be right to partially excuse.
'MERCY' KILLING: THE PROPOSALS OF THE CRIMINAL LAW REVISION COMMITTEE
8.38 Thirty years ago, the Criminal Law Revision Committee ("the CLRC") drew up for discussion a possible new offence of 'mercy' killing:[17]
We suggest that there should be a new offence which would apply to a person who, from compassion, unlawfully kills another person who is or is believed by him to be (1) permanently subject to great bodily pain or suffering, or (2) permanently helpless from bodily or mental incapacity, or (3) subject to rapid and incurable bodily or mental degeneration. We think that there should be a requirement that the defendant had reasonable cause for his belief that the victim was suffering from one of the conditions mentioned in (1), (2) or (3).[18]
8.39 The offence was to have a maximum penalty of two years' imprisonment.
8.40 The CLRC acknowledged that the definition did not refer to the state of mind of the deceased, and that there might be a case for insisting that the victim consented to be killed or at least that the killing occurred, as the CLRC put it, "without the dissent of the deceased".[19] The Committee pointed out, however, that such a requirement might give rise to difficulties, "in cases in which the deceased is unable to consent or not to dissent because he is unconscious or in the case of a young child".[20]
8.43 It may be that compassion can share with fear and anger a spur-of-the-moment dimension or manifestation. A not uncommon example is where the defendant instinctively rushes to stop the victim jumping from a bridge to commit suicide, rather than 'respecting the victim's autonomy'.[21] This kind of compassion can motivate intentional killing. Another example is where the victim, a soldier about to burn to death whilst trapped in a vehicle, begs a passing fellow soldier, the defendant, to shoot him dead to save him from death by fire, when it becomes clear that he (the victim) cannot be saved from the conflagration.
8.45 The closest analogy is perhaps with so-called 'slow-burn' cases in which anger at persistent provocation builds up over a long period, finally breaking down the defendant's power of self-restraint.[22] The difficulties the courts have encountered with such cases should act as a warning that a requirement of "compassionate" action is not straight forward as an excusatory element. The difficulties are accentuated by the fact that the requirement of "compassion" does not distinguish in a clear way between lay and professional carers who kill, and hence between excusatory and justificatory reasons for killing.
8.47 The CLRC thought that "[i]f it appeared from the evidence that the defendant had other reasons for killing, the jury might well not be satisfied that the killing was from compassion".[23] That seems optimistic, in that it skirts around the case in which as in the example just given, a doctor acts for genuinely mixed motives. This is problematic in the context of the present review.
8.48 As we said at the outset, we will not be considering euthanasia-based justificatory motives for killing, even in the context of discussing levels or grades of offence. We have already explained why we are adopting that stance in paragraphs 8.3-8.6.[24]
8.49 Showing admirable flexibility in its thinking, when the CLRC came to make its final report, the suggestion for a new offence along the lines discussed was dropped as it had little support from consultees.[25] The reasons that consultees opposed it are worth highlighting:
[I]t was said that our suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well because the basis of the suggested new offence would rest upon the defendant's evaluation of the condition of the victim. That evaluation might be made in ignorance of what medicine could do for the sufferer. We were reminded, too, of the difficulties of definition.[26]
'MERCY' KILLING: THE NATHAN COMMITTEE REPORT
8.51 When the House of Lords Select Committee ("the Nathan Committee") considered the issue of 'mercy' killing, they thought the abolition of the mandatory life sentence would adequately deal with such cases.[27] Implicit in the adoption of such a stance is the view that it is right to label all such cases as one of 'murder'. On that point, we are minded to disagree.
8.53 First, 'mercy' killing was to be a special defence to murder and not a specific offence.[28] We do not now see a huge advantage in such a step. When charged with murder, defendants might quite reasonably wish to plead both that they are guilty of 'mercy' killing, and that they were suffering from diminished responsibility. As, on the view under discussion, these are entirely separate issues in law, a split jury would have to make up its mind which applied, even when they were agreed that the defendant should not be found guilty of "first degree murder". That possibility should be avoided.
8.54 Secondly, the excusatory element in the offence was sharpened up. Instead of a requirement of "compassionate" motive, the Law Commission at that time suggested that the killing must have been done "at a time when the accused was affected by severe emotional distress".[29] Professor Leigh suggested, along similar lines, that the defendant be required to show that his or her action was taken under "overwhelming emotional stress".[30]
This, in effect, would amount to the extension of the defence of diminished responsibility, explicitly bringing within the defence some cases which at present are accommodated only by a straining of the concepts beyond their proper limits and others where the defendant is not so fortunate and is convicted of murder.[31]
DEPRESSED CARERS WHO KILL: SOME EMPIRICAL EVIDENCE
8.58 Professor Barry Mitchell's work on public opinion about homicide has yielded strong support for a lenient attitude towards what can broadly be termed merciful killing by consent. We set out this evidence in our Report, Partial Defences to Murder.[32] Professor Mitchell asked his sample of members of the public to grade the following scenario in terms of seriousness:
A man has nursed his terminally-ill wife for several years but eventually gave in to her regular requests that he should 'put her out of it', and he smothered her with a pillow.
8.60 Since the passing of section 4 of the 1957 Act, there have been between 10-15 successful suicide pacts per year, on average. A relatively recent study indicated that, for example, in the five years between 1988 and 1992, 124 people died in a total of 62 suicide pacts.[33] During that same period, there were 144 instances of homicide-suicide ('you-then-me' cases), in which 327 people died.[34] Many of these these will be tantamount to suicide pacts in that the victim will have consented to be killed.
8.61 The overwhelming majority of suicide pacts (95%) involve the use of car exhaust or medicine.[35] This statistic should be contrasted with the figures for homicides more generally. 62% involved shooting, the use of a sharp instrument, hitting or kicking.[36] It seems more likely that a victim may have consented to be killed by a less violent method, such as gassing or asphyxia, than by a violent method, such as stabbing or hitting.
8.62 There is strong evidence that most of those engaging in suicide pacts are, relatively speaking, older people.[37] Brown and Barraclough's study suggests that 73% of suicide pact participants were over 45 years of age, the average age being 56 years. This is supported by the earlier research by Cohen, who suggested that 87% were over 40 years of age.[38] Furthermore, in 77% of the cases studied by Brown and Barraclough, the pacts were entered into by married couples and a further 13% by close blood relatives.
8.63 Suicide pacts are strongly linked with illness, both mental and physical, in one or both of the participants. Depression is the most frequently encountered mental illness,[39] something common to cases studied in the US.[40] That ties in with studies of individual suicide amongst older persons, which is strongly linked with physical ill health (50-60%) and mental disturbance through depression (79%).[41]
8.64 The picture is similar, in some respects, where homicide-suicide cases are concerned. 80% of cases involved one victim and one suspect while 88% of cases involved members of the same family.[42] The vast majority of cases (over 80%) will involve an older person, probably suffering from depression, killing a chronically ill spouse or partner for whom he has been caring.[43]
8.65 In that regard, Age Concern have pointed out that 24% of people die at home and these will tend to be more elderly people.[44] Unfortunately, as Age Concern goes on to indicate, it seems that the older a very sick patient is (and especially if a cancer patient is over 85 years of age), the less likely they are to receive inpatient hospice care than a younger patient with similar levels of symptom distress and dependency. That obviously places a great burden on the carer at home. This burden may be strongly associated with the onset of their depression.
8.67 However, before developing this argument, it would be right to highlight an important but relatively little known facet of these cases. It is the way in which they tend to involve male defendants and female victims.[45]
MURDER-SUICIDE, SUICIDE PACTS AND GENDER DIFFERENCES
8.68 Gender differences are at work in both suicide pact and homicide-suicide cases. These differences are of a particular concern in homicide-suicide cases where there is by definition a free and informed decision to kill (putting aside the question of mental disorder). There is some evidence that dominating and controlling male partners may be receiving unduly lenient treatment at the hands of the law. This concern has frequently been voiced in relation to provocation and diminished responsibility cases.[46]
8.69 In England and Wales, people who commit suicide in a pact are more likely than those who commit suicide alone to be older, to be married and to be female.[47] The ratio of males to females in suicide pacts is 1:1, whereas in instances of solitary suicide it is 3:1.
8.70 A study in the USA has also shown that men who enter into suicide pacts or commit homicide-suicide are three times more likely to have been in a caring role than those men who commit solitary suicide.[48] The latter tend more often to have been in receipt of care themselves.[49]
8.71 The immediate trigger for a suicide pact is normally a threat to the continuation of a relationship, such as the impending death of one party.[50] In that regard, almost all suicide pacts are likely to conform to one of two models, which have been called the 'dependent-protective' model and the 'symbiotic' model.[51]
8.72 In the dependent-protective model, the couple have been married a long time and they are highly dependent on one another. The man, who has been dominant in the relationship, fears that he will no longer be able to fulfil his role as care-giver, perhaps because of a deterioration in his own health or in his wife's health. Something like one half of those who enter into pacts suffer from psychiatric disorders and a third from physical illness.[52] As Dr Donna Cohen puts it, "serious depression from years of caregiving, coupled with increasing isolation, produces hopelessness in the male caregiver and triggers the act".[53]
One or (usually) both are very sick … The husband and wife are so enmeshed in each other that their individual characteristics are blurred. The male perpetrator is often the dominant personality and the female victim is often submissive.[54]
8.75 Even in suicide pact cases, where violent means are much less commonly adopted, there is some evidence that it is the man who tends to take the lead, with his wife co-operating.[55] Some have even argued that there is commonly an element of coercion in the decision to enter a suicide pact.[56]
8.76 What is to be made of these differences? A common stereotype employed in explaining the rationale for section 4 of the 1957 Act is of "compassionate assistance to someone already determined to commit suicide".[57] This was, broadly speaking, the model adopted in the scenario employed in the public opinion survey (see paragraph 8.58). The use of the stereotype can be defended as an ideal case for lenient treatment; but how true to reality is the stereotype?
8.77 One hypothesis to explain the figures just given might run as follows. Men cope less well, mentally, with their own illnesses: hence, their predominance in the solitary suicide cases.[58] 8 They also cope less well, mentally, with long-term domestic caring roles: hence their predominance as perpetrators of the homicide in domestic homicide-suicide cases:
A caregiving role appears to be a significant factor associated with spousal/consortial homicide-suicide. Spousal caregiving is associated with an increased risk for depression as well as other negative health, personal, and family consequences.[59]
A dependent-protective attachment to the spouse and the need to control the relationship are known to play an important role in the chain of events leading to spousal homicide-suicide.[60]
8.79 When considering the implications of homicide-suicide cases in which a defendant resorts to violence as a result of being unable to cope, the gendered nature of violence in society generally should be taken into account. Specifically, the proportion of violent offenders who are male is overwhelming. Further, 67% of victims of domestic violence are women.[61] A decision by a mentally disturbed man to end the life of his (consenting) partner, whether by violence or other means, simply seems to come more easily to him than it would do to his spouse were she in his position.
Homicide-suicides in older people are not acts of love or altruism. They are acts of depression and desperation. Approximately 40% of the perpetrators in west central Florida had depression or other psychiatric problems …
…The men who committed suicide had significantly more health problems, but more than one-third of homicide-suicide perpetrators had a recent significant decline in health prior to the act. Indications of depression were high for both groups …
… One common feature … that precipitates the act is a perception by the older man of an unacceptable threat to the integrity of the relationship (such as pending institutionalisation), a real or perceived change in the perpetrator's health, or marital conflict and domestic violence ….[62]
8.81 It is worth noting that in another US study, 30% of homicide-suicides were found to fall into an 'aggressive' paradigm, in which there had been a history of marital conflict or domestic violence.[63] It may well be that the picture is no different for England and Wales.[64]
8.82 Our provisional proposal that such cases are best dealt with through reform of the defence of diminished responsibility means that the defendant must provide proof that a medically recognised abnormality of mental functioning played a significant part in his or her actions. By limiting the reach of the defence in this way, we aim to address gender-based concerns. The defence should not benefit men whose killing with consent is really a reflection of their perhaps violent and controlling, but not clinically abnormal, personalities or state of mind.[65]
EXPANDING SECTION 2 OF THE HOMICIDE ACT 1957: OUR PROPOSALS
8.84 At present, killers by consent who were long-term carers of a terminally ill spouse, but who fall outside the limited scope of section 4 of the 1957 Act, are already quite commonly dealt with under section 2 of the Act as persons suffering from diminished responsibility. It is the prosecution that normally accepts the plea in such cases. In Suzanne Dell's study of the operation of section 2 in practice, she suggested that in such cases, "men in their 60s or 70s … had reached breaking point under the continued strain of looking after wives with severe mental or physical illnesses". [66]
8.85 Dell's suggestion accords with the evidence already considered that suggests that mental illness, and depression in particular, is a major causal factor in such cases. The theoretical problem in law is that such depression is often 'reactive' or situational and may not be regarded as fitting the requirement that an abnormality of mind stems from a disease, injury, or any other inherent cause.[67]
8.86 It is commonly accepted that these potential problems are "swept under the carpet".[68] This happens through prosecution acceptance of a plea of guilty to section 2 manslaughter. The plea is accepted to ensure that what seems to prosecutors to be a relatively venial instance of the offence is not met with a conviction for murder.
8.87 Professor Mackay has suggested that since there is little prospect of a change in the law to permit spouses to perform 'mercy' killing legitimately, "might it not be better … to craft a plea of diminished responsibility which can more readily accommodate such homicides?".[69] This broadly coincides with our provisional view. We believe that our version of diminished responsibility will be apt to cover the most deserving of such cases.
JOINT SUICIDE AND COMPLICITY IN SUICIDE
8.97 Even so, when carers enter into suicide pacts with those for whom they have been caring, criminal liability may necessarily be more serious than the commission of a section 2 offence. Further, it may be unexpectedly extensive by virtue of the Domestic Violence, Crime and Victims Act 2004 ("the 2004 Act"). This Act provides that other members of the household – principally, family members – may become liable for failing to prevent the death of a vulnerable adult, even if they in good conscience believed that the adult in question should be left to determine his or her own fate.[70]
8.98 Liability may necessarily be more serious than the commission of a section 2 offence in cases where a suicide pact was of the 'die together' variety, but only if the victim was killed by the defendant's conduct. In such cases, it seems unlikely that a jury is entitled by virtue of section 2(2) to bring in a verdict of complicity in suicide.[71] It seems that the only available verdicts at present are murder, manslaughter or complete acquittal. If so, that is too harsh on the defendant.
8.99 Section 4 of the 1957 Act applies when the defendant "kill[s] the other". Section 2 of the 1961 Act applies when the defendant "aids abets, counsels or procures the suicide of another". In some half-completed suicide pacts, such as that in Sweeney (discussed in paragraphs 8.16-8.18) where the intention was to die together, the defendant does in fact "kill the other". He or she sets in train a series of events that causes the victim's death. The defendant does not merely assist the victim to commit suicide although, as the Editor of Smith and Hogan: Criminal Law points out, the distinction between section 4 manslaughter and section 2 complicity in suicide, "may be very fine".[72] So, it would seem that whilst a verdict of manslaughter under section 4 of the 1957 Act is available, a verdict of complicity in suicide contrary to section 2 of the 1961 Act is not.
8.100 This is unfair given that in 'die together' pacts there may well have been mutual assistance and support in the acts leading up to the attempt to commit suicide together.[73] The verdict of guilty of the (lesser) section 2 offence is unavailable simply because – perhaps by chance – the survivor was the one who performed what is taken to be the key piece of conduct causing the victim's death. The fact that he or she intended to die by this act as well does not change that.
Ü Þ
Note 1 Under the Criminal Justice Act 2003, s 269, sched 21, even when the offender is convicted of murder, the list of factors that are to count towards reduction of the initial period to be spent in custody includes “belief by offender that the murder was an act of mercy”. [Back] Note 2 See A-G’s Reference (No 1 of 2004) [2004] EWCA Crim 1025, [2004] 1 WLR 2111. [Back] Note 3 Suicide Act 1961, s 2:
(1) 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.
(2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence. [Back] Note 4 (1986) 8 Cr App R (S) 419 (CA). [Back] Note 5 Ibid, 421, per Watkins LJ. [Back] Note 6 Archbold: Criminal Pleading, Evidence and Practice (2005) para 19.84. [Back] Note 7 (1986) 8 Cr App R 419 (CA) 421. [Back] Note 8 Suicide Act 1961, s 1. [Back] Note 10 The Court of Appeal in Kennedy [2005] EWCA Crim 685, [2005] 1 WLR 2159, confirmed that where there is no break in the chain of causation between a defendant’s acts of assistance and a victim’s suicide, it is appropriate to say that the defendant may cause the victim’s death (even in ‘die together’ cases). Kennedy was not itself a case involving a suicide pact. The victim was a drug user. The defendant prepared a syringe containing an illegal substance which he handed to the victim. The victim then knowingly injected himself, causing his subsequent death (though not intending to do so). The defendant was convicted of manslaughter. In relation to assisting in suicide, the Court of Appeal said that it would be an abuse of process to charge murder against someone who had assisted in another’s suicide foreseeing that their act of assistance would be virtually certain to contribute causally to the victim’s death. Arguably, Kennedy notwithstanding, there is a break in the chain of causation when the defendant simply helps the victim to die by the victim’s own hand. In such a case, the victim’s death is the consequence intended by the victim’s own action. By way of contrast, on the facts of Kennedy the victim’s death was unintended, even though the victim’s action in injecting himself with a substance provided and prepared for that purpose by the defendant was a free, deliberate and informed one. [Back] Note 11 Blackburn (unreported), referred to in “Suicide Pact Husband Spared Jail”, BBC News (12 January 2005) http://news.bbc.co.uk/1/hi/england/4174155.stm. [Back] Note 12 The defendant pleaded guilty to manslaughter, and was spared gaol by the trial judge. It is noteworthy that the couple’s sons wrote to the court to plead for mercy for their father. [Back] Note 13 Royal Commission on Capital Punishment, Royal Commission on Capital Punishment 1949-1954: Report (1953) Cmnd 8932, paras 164-176. [Back] Note 14 Ibid, para 176. [Back] Note 15 See the remarks of Sir F Soskice, Hansard (HC) 28 November 1956, vol 561, col 537. [Back] Note 16 Under our proposals in Part 2, if section 4 were to be retained, killing in the course of a suicide pact would become “second degree murder”, not manslaughter. This is in line with what we propose for other partial defences. [Back] Note 17 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) paras 79-87. [Back] Note 21 The use of inverted commas indicates that, for present purposes, we remain agnostic on the question of whether someone does indeed properly respect another’s autonomy by passing by on the other side. [Back] Note 22 See the discussion in Ahluwalia [1992] 4 All ER 889 (CA). [Back] Note 23 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) para 86. [Back] Note 24 See also the deliberations of the British Medical Association’s Working Party on euthanasia, cited in Select Committee of the House of Lords, Report of the Select Committee on Murder and Life Imprisonment: Vol 1 (1989) para 97. [Back] Note 25 Criminal Law Revision Committee, Offences Against the Person (1980) Report 14, para 115. [Back] Note 27 Select Committee of the House of Lords, Report of the Select Committee on Murder and Life Imprisonment: Vol 1 (1989) para 100. [Back] Note 32 Partial Defences to Murder (2004) Law Com No 290, 191-192. [Back] Note 33 M Brown and B Barraclough, “Epidemiology of Suicide Pacts in England and Wales, 19881992” (1997) 315 BMJ 286. [Back] Note 34 B Barraclough and E C Harris, “Suicide Preceded by Murder: The Epidemiology of Homicide-Suicide in England and Wales 1988-92” (2002) 32 Psychological Medicine 577. This figure for homicide-suicides is inevitably somewhat larger than the number of suicide pacts, because the former includes cases in which a murderer commits suicide simply in order to avoid capture. The figure would be larger still if the interval allowed for in the study between the homicide and the suicide had been greater. Barraclough and Harris looked at cases in which there was a gap of no more than three days between the homicide and the suicide. [Back] Note 35 See M Brown and B Barraclough, “Partners in Life and in Death: The Suicide Pact in England and Wales 1988-1992” (1999) 29 Psychological Medicine 1299; Fishbain and Aldrich, “Suicide Pacts: International Comparisons” (1985) 46 J of Clinical Psychiatry 11. In a later study of murder-suicide, however, Barraclough and Harris found a lower incidence of the use of gas poisoning and a higher incidence of the use of firearms: B Barraclough and E C Harris, “Suicide Preceded by Murder: The Epidemiology of Homicide-Suicide in England and Wales 1988-92” (2002) 32 Psychological Medicine 577. [Back] Note 36 C Flood-Page and J Taylor (eds), Crime in England and Wales 2001/2002: Supplementary Volume (2003) 9. [Back] Note 37 In that regard, Dunbar v Plant [1998] Ch 412 (see para 8.27) was highly unusual, in that the pact was between young people. [Back] Note 38 J Cohen, “A Study of Suicide Pacts” (1961) 29 Medico Legal J 144. In Dr Donna Cohen’s study of the USA in 2000, she found the average age of homicide-suicide perpetrators was 79: D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 39 M Brown, E King and B Barraclough, “Nine Suicide Pacts: A Clinical Study of a Consecutive Series 1974-93” (1995) 167 British J of Psychiatry 448. [Back] Note 40 M Rosenbaum, “Crime and Punishment – The Suicide Pact” (1983) 40(9) Archives of General Psychiatry 1; J E Malphurs, C Eisdorfer and D Cohen, “A Comparison of Antecedents of Homicide-Suicide and Suicide in Older Married Men” (2001) 9 American J of Geriatric Psychiatry 49. [Back] Note 41 H R Cattell, “Elderly Suicide in London: An Analysis of Coroners’ Inquests” (2004) 3(4) International J of Geriatric Psychiatry 251. [Back] Note 42 B Barraclough and E C Harris, “Suicide Preceded by Murder: The Epidemiology of Homicide-Suicide in England and Wales 1988-92” (2002) 32 Psychological Medicine 577. The latter figure is almost identical to the figure for the USA, where 80-90% of homicide-suicides involve spouses or partners: D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1; D Cohen, “Caregiver Stress Increases Risk of Homicide-Suicide” (2000) 1(4) Geriatric Times 20. [Back] Note 43 B Barraclough and E C Harris, “Suicide Preceded by Murder: The Epidemiology of Homicide-Suicide in England and Wales 1988-92” (2002) 32 Psychological Medicine 577; D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 44 See Age Concern, The National Council on Ageing, End of Life Issues (2002) Policy Position Paper, para 3, available at Age Concern, http://www.ageconcern.org.uk/AgeConcern/media/EndoflifepppSept2002.pdf. [Back] Note 45 We were warned by Rights of Women that it may sometimes be claimed that women have taken their own lives in circumstances where there was considerable pressure on them to do so from dominating male members of the family. [Back] Note 46 See the discussion in Partial Defences to Murder (2004) Law Com No 290, Appendices A and B. [Back] Note 47 M Brown and B Barraclough, “Partners in Life and in Death: The Suicide Pact in England and Wales 1988-1992” (1999) 29 Psychological Medicine 1299. [Back] Note 48 J E Malphurs, C Eisdorfer and D Cohen, “A Comparison of Antecedents of Homicide-Suicide and Suicide in Older Married Men” (2001) 9 American J of Geriatric Psychiatry 49. [Back] Note 49 See also, D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 50 B K Rosen, “Suicide Pacts: A Review’ (1981) 11 Psychological Medicine 523. [Back] Note 51 D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 52 M Brown and B Barraclough, “Partners in Life and in Death: The Suicide Pact in England and Wales 1988-1992” (1999) 29 Psychological Medicine 1299. [Back] Note 53 D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 55 M Brown and B Barraclough, “Partners in Life and in Death: The Suicide Pact in England and Wales 1988-1992” (1999) 29 Psychological Medicine 1299. The victim may co-operate willingly, of course, even in cases where violent means, such as cutting wrists, have been used: Blackburn (unreported), referred to in “Suicide Pact Husband Spared Jail”, BBC News (12 January 2005) http://news.bbc.co.uk/1/hi/england/4174155.stm. [Back] Note 56 D Young, C Rich and R Fowler, “Double Suicides: Four Modal Cases” (1984) 45 J of Clinical Psychiatry 470. [Back] Note 57 A Ashworth, Principles of Criminal Law (3rd ed 1999) 295. See also Criminal Law Revision Committee, Penalty for Murder (1973) Report 12, cited by L Blom-Cooper and T Morris, With Malice Aforethought: A Study of the Crime and Punishment for Homicide (2004) 162. [Back] Note 58 See H Cattell, “Suicide in the Elderly” (2000) 6 Advances in Psychiatric Treatment 102. [Back] Note 59 J E Malphurs, C Eisdorfer and D Cohen, “A Comparison of Antecedents of Homicide-Suicide and Suicide in Older Married Men” (2001) 9 American J of Geriatric Psychiatry 49. [Back] Note 61 T Dodd, S Nicholas, D Povey and A Walker, Crime in England and Wales 2003/2004 (2004) 73. [Back] Note 62 D Cohen, “Homicide-Suicide in Older People” (2000) XVII(1) Psychiatric Times 1. [Back] Note 64 M Brown, E King and B Barraclough, “Nine Suicide Pacts: A Clinical Study of a Consecutive Series 1974-93” (1995) 167 The British J of Psychiatry 448. [Back] Note 65 We are grateful for the advice we have received on this issue from Dr Madelyn Hicks, Honorary Lecturer, Sections of Community and Cultural Psychiatry, Department of Health Services Research, Institute of Psychiatry, Kings College London. [Back] Note 66 S Dell, Murder into Manslaughter: The Diminished Responsibility Defence in Practice (1984) 35-36. [Back] Note 67 Sanderson (1994) 98 Cr App R 325, discussed by R D Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117. [Back] Note 68 Professor Ashworth’s phrase: A Ashworth, Principles of Criminal Law (3rd ed 1999) 296. [Back] Note 69 R D Mackay, “Diminished Responsibility and the Mentally Disordered”, in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 80. [Back] Note 70 Liability under the 2004 Act will hinge on whether the other member of the household is found to have failed to take such steps as could reasonably have been expected to protect the victim from the risk of the defendant’s unlawful act: see s 5(1)(d). If the family member is found to have been in gross breach of a duty of care towards the victim, he or she may also be found guilty of manslaughter. [Back] Note 71 We have been greatly assisted in our thinking about the relationship between section 4 manslaughter and assisting suicide by the insights of the Reverend Professor Oliver O’Donovan, Canon of Christ Church, Oxford University. [Back] Note 72 D Ormerod (ed), Smith and Hogan: Criminal Law (11th ed 2005) 497. [Back] Note 73 See Dunbar v Plant [1998] Ch 412, 438, per Phillips LJ:
Where two people are driven to attempt, together, to take their lives, and one survives, the survivor will normally attract sympathy rather than prosecution. A suicide pact may be rational, as where an elderly couple who are both suffering from incurable diseases decide to end their lives together, or it may be the product of irrational depression or desperation. In neither case does it seem to me that the public interest will normally call for…prosecution… . [Back]
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