The Law Commission

APPENDIX B

SUICIDES: AIDED OR ASSISTED?

INTRODUCTION

B.1 Over recent years there has been a growth in the phenomenon of "suicide websites". In their least objectionable form such websites provide the visitor with little more than advice as to potential methods for committing suicide. However, such websites can also offer services akin to a dating agency for potential suicides. Such websites have been at the root of numerous suicide pacts, uniting people contemplating suicide and providing them with the advice as to how they should end their lives. This has become an increasing cause for concern.^[1]

B.2 In the light of this, any review of offences of "encouraging and assisting" needs to consider the issue of assisting suicide. Currently the law's response to the problem of assisting suicide is found in section 2 of the Suicide Act 1961,^[2] which makes it an offence to "aid, abet, counsel or procure the suicide of another, or an attempt by another to commit suicide".^[3] The question is whether involvement in the suicide of another ought to continue to be criminalised under section 2 of the Suicide Act or whether the behaviour ought to be addressed by the Crime (Encouraging and Assisting) Bill.^[4]

B.3 This Appendix will start by explaining why the offence of aiding suicide under section 2 of the Suicide Act, in the absence of any reform, offers an adequate solution to the problem posed by those who involve themselves in the suicide of another. It will then explore some potential benefits of moving such behaviour within the scope of the Encouraging and Assisting Bill in any event.

RETAINING THE OFFENCE UNDER SECTION 2 SUICIDE ACT 1961

B.4 As we explained in Part 3,^[5] the biggest problem that the Encouraging and Assisting Bill seeks to address is that there is secondary, that is derivative, liability for aiding crime but no inchoate liability for assisting crime.^[6] Therefore, if the principal offence that the assistor intends to assist never comes about the assistor is not liable for any offence at all. This is in stark contrast to encouragers who are guilty of the inchoate offence of incitement in the absence of the encouraged principal offence being committed. There is no good reason for this differential treatment of assistors and encouragers, especially given the fact that the line between assisting and encouraging is both hazy and hard to draw.

B.5 However, the problem posed by the lack of an inchoate offence of assisting to complement secondary liability as an assistor would be rendered academic if it were possible to convict of an "attempt to aid, abet, counsel or procure". However, no such offence is known to English law, as section 1(4)(b) of the Criminal Attempts Act 1981^[7] expressly states that there shall be no offence of attempting to aid abet counsel or procure.^[8] Therefore, the absence of an inchoate offence of assisting leaves a genuine gap in the law which the Encouraging and Assisting Bill seeks to fill.

B.6 However, this gap in the law does not affect the offence of aiding suicide. This is because of the special nature of the offence of aiding suicide contrary to section 2 of the Suicide Act. This offence, despite being drafted in the language of secondary liability, is in fact an offence committed by the defendant as a principal rather than as a secondary party. This is because in cases of aiding suicide the aided party commits no crime from which the secondary liability of the aider could be derived. Therefore, those who aid suicide have to be convicted as the principal offender of the offence of aiding suicide rather than being convicted of suicide committed as a secondary participant.

B.7 This has important consequences. Prior to the passing of the Suicide Act, suicide was an offence which could be aided by a secondary party but there could be no attempt to aid. The passage of the Suicide Act altered the situation: aiding suicide became a statutory offence committed as a principal that could be attempted like any other offence.

The law on aiding suicide contrary to section 2 of the Suicide Act

B.8 Currently there are two major authorities on aiding suicide contrary to section 2 of the Suicide Act or attempting to do the same: Attorney General v Able^[9] and R v S.^[10] Each is worthy of brief consideration.

Able

B.9 The leading authority on aiding suicide contrary to section 2 of the Suicide Act is Able. In Able the Attorney General sought a High Court declaration that the Voluntary Euthanasia Society's distribution of a booklet entitled "A guide to self-deliverance", which contained advice as to five recommended methods of committing suicide, was unlawful. The application for declaratory relief was focussed on the offence of aiding suicide contrary to section 2 of the Suicide Act. No reliance appears to have been placed upon the offence of attempting to do the same contrary to section 1 of the Criminal Attempts Act.

B.10 Mr Justice Woolf (as he then was) declined to grant the requested declaration. Having found that the option of granting the declaration was open to him in principle, he found on the facts that the Attorney General had not established that the supply of the booklet was necessarily an offence under section 2 of the Suicide Act.

B.11 However, the judgment is in some ways problematic. Two questions in particular warrant closer attention:

(1) What is the mens rea of the offence of aiding suicide?

(2) What is the actus reus of the offence of attempting to aid suicide?

B.12 With regard to the first question, Mr Justice Woolf held:

As a matter of principle, it seems to me that as long as there is the necessary intent to assist those who are contemplating suicide to commit suicide if they decide to do so, it does not matter that the supplier does not know the state of mind of the actual recipient.^[11]

B.13 This is a departure from the existing law on secondary liability, which suggests that the secondary party must know of all the "essential matters that constitute the offence".^[12] It appears that the defendant need not know that the recipient has decided to commit suicide, or is even contemplating suicide. It appears to suffice that the defendant intends to assist the recipient to commit suicide should he decide to do so. Whilst this is a departure from the general law on secondary liability, as has already been pointed out the offence of aiding suicide is committed as a principal not as a secondary party. Able is therefore authoritative on this point.^[13]

B.14 Turning to the second question, Mr Justice Woolf appears to contradict himself as to the actus reus of attempting to aid suicide contrary to section 1 of the Criminal Attempts Act. At one point Mr Justice Woolf seems to suggest that actual assistance is necessary even for the offence of attempting to aid suicide. In response to the submission that in some cases a recipient who was contemplating suicide may actually be deterred from doing so by reading the booklet and that it would be "quite nonsensical to regard the supply of the booklet as being an attempted offence contrary to section 2",^[14] Mr Justice Woolf said:

I agree … because, in such a case, the booklet has not provided any assistance with a view to a contemplated suicide. Such assistance is necessary to establish the actus reus for even the attempted offence.^[15]

B.15 Immediately afterwards Mr Justice Woolf continued by saying that there would be cases where, for example, there had been a long delay between the supply of the booklet and the suicide, where:

there would not be a sufficient connection between the attempted suicide and the supply of the booklet to make the supplier responsible.^[16]

B.16 However, the idea that the actus reus of attempting to aid suicide should require actual assistance seems inconsistent with the general law of attempts. At another point, further down the same page, when Mr Justice Woolf came to summarising his conclusions, all reference to actual assistance being necessary for the actus reus of attempting to aid suicide disappears. He said that section 2 requires

(a) that the alleged offender had the necessary intent, that is, he intended the booklet to be used by someone contemplating suicide and intended that person would be assisted by the booklet's contents, or otherwise encouraged to attempt to take or to take his own life; (b) that while he still had that intention he distributed the booklet to such a person who read it; and, (c) in addition, if an offence under section 2 is to be proved, that such a person was assisted or encouraged by so reading the booklet to attempt to take or to take his own life, otherwise the alleged offender cannot be guilty of more than an attempt.^[17]

B.17 This passage seems more compatible with the general law on attempts. At this point it is useful to consider S.

S

B.18 S is the leading authority on attempting to aid suicide contrary to section 1 of the Criminal Attempts Act. In S the defendant had encouraged his girlfriend to commit suicide. He had plied her with alcohol, dictated her suicide note, taken her to a jetty, and encouraged her to jump. The victim was found alive some time later at the bottom of the jetty. S was convicted of attempting to aid and abet suicide contrary to section 1 of the Criminal Attempts Act on facts that in essence amounted to encouraging or inciting someone who does not wish to commit suicide to do so.

B.19 On appeal it was held that the case was indeed one of attempting to aid suicide. Lord Justice Rix held that the offence of attempting to assist suicide did not require the person assisted to subsequently form an intention to commit suicide.^[18] Indeed, he approved the direction that it was only the assistor's mind, and not the assistee's mind, which was relevant. In doing so he observed that if the assistee did not wish to commit suicide this merely rendered D's attempt to aid and abet suicide an attempt at the impossible, which was still a crime.^[19]

B.20 If there can be an attempt to aid suicide in the absence of a subsequent decision by the assisted party to commit suicide, it follows that actual assistance does not form part of the actus reus of attempting to aid suicide. It was only the concluding paragraph from Mr Justice Woolf's judgment in Able, and not the more problematic paragraphs that preceded it, that were cited to the Court of Appeal in S.^[20] Since the problematic passages in Able on attempting to aid suicide were strictly obiter, S authoritatively determines that no actual assistance need be given for there to be an attempt to aid suicide.

Conclusion on the current law of aiding or attempting to aid suicide

B.21 Therefore, there will be an offence of attempting to aid suicide contrary to section 1 of the Criminal Attempts Act where:

(1) the defendant does an act that is more than merely preparatory to aiding suicide; and

(2) he does that act with an intention that those people aided by his act (who themselves intend to commit suicide or who go on to form the intention to commit suicide) will be aided in committing or attempting to commit suicide.

B.22 Moreover, the offence of aiding suicide contrary to section 2 of the Suicide Act will be committed if in addition to the above:

(1) the recipient of the act intended to aid goes on to commit or attempt to commit suicide; and

(2) he or she is in fact aided in doing so by the defendant's act.

Conclusion on retaining the offence of aiding suicide

B.23 In conclusion, it appears that the offences of aiding suicide and attempting to aid suicide together provide adequate coverage of all behaviour that ought to be unlawful. Had the Attorney General in Able relied on both section 2 of the Suicide Act and section 1 of the Criminal Attempts Act then he ought to have been granted the declaration he sought.

B.24 Moreover, in the context of suicide websites one factual point ought to be highlighted. In Able each supply of the booklet was a separate act which would have constituted a separate offence. This is in stark contrast to suicide websites. Here there is a single act, which happens to be able to supply assistance to a large number of people. The facts in Able would have only been comparable to a suicide website if the Society had taken out a billboard advert rather than sending copies of a booklet out to recipients on request. This is significant because to obtain a declaration in Able the Attorney General had to show that every act was a crime, that is that every sending of the booklet would be a crime.

B.25 Whilst in the case of a suicide website, the Attorney General would still need to show that every act was an offence, this is more easily done in the case of suicide websites as there is only one act, that of publishing the website. This single act can then be shown to constitute an offence contrary to the Criminal Attempts Act 1981, if the publisher has the requisite intention. It will also constitute an offence contrary to section 2 of the suicide act if it is shown that any one single visitor to the website was aided by the website to commit suicide.

B.26 Therefore, the contemporary problems posed by suicide websites and other involvements in the suicide of another could adequately be addressed without reform to section 2 of the Suicide Act. As such there is no need to supplement "secondary" liability for aiding suicide with an inchoate offence of assisting suicide.

THE CASE FOR REFORMING SECTION 2 OF THE SUICIDE ACT

B.27 However, there are options for the reform of section 2 of the Suicide Act that deserve serious consideration. Two potential changes are particularly attractive.

B.28 Firstly, there is a strong case for updating the language of section 2 of the Suicide Act.

B.29 Secondly, there is a strong case for applying the Encouraging and Assisting Bill's broader provisions on extra-territorial jurisdiction to the offence of aiding suicide contrary to section 2 of the Suicide Act. These provisions would be especially useful in combating suicide websites. This is because the Internet facilitates cross-border communication and its use is, therefore, by its very nature, more likely to raise jurisdictional issues.

Note 1    Web 'may fuel suicide pact rise' – 2 December 2005, http://news.bbc.co.uk/1/hi/health/4061623.stm; Coroner's anger at suicide site – 15 August 2003, http://news.bbc.co.uk/1/hi/wales/south_east/3154835.stm.     [Back]

Note 2    Hereafter “the Suicide Act”.    [Back]

Note 3    Hereafter “aiding suicide”.    [Back]

Note 4    Hereafter “the Encouraging and Assisting Bill”.    [Back]

Note 5    Paras 3.2 to 3.17 above.    [Back]

Note 6    “Aid, abet, counsel or procure” is the term used in s 8 of the Accessories and Abettors Act 1861 and is the language of secondary liability. Encourage or Assist is the term used in the Encouraging and Assisting Bill and is the language of inchoate liability. Generally, “aid” and “abet” are synonymous with “assist”, whilst “counsel” means “encourage”, with “procure” being an anomalous “niche” form of secondary liability. Hereafter, unless the context otherwise dictates, “assisting” will be used as a synonym for “assisting and encouraging” and “aiding” will be used as a synonym for “aiding, abetting, counselling, and procuring”.    [Back]

Note 7    Hereafter “the Criminal Attempts Act”.    [Back]

Note 8    It appears that the decision not to have an offence of attempting to aid and abet seems to be based on the view that instances of attempting to aid and abet whereby the potential defendant fails to be helpful are too remote from the harm caused by the principal offence to be criminalised. However, there was no discussion of the situation where the potential defendant manages to be helpful but there fails to be a principal offence from which his liability could be derived. See Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (1980) Law Com 102.    [Back]

Note 9    [1984] QB 795.    [Back]

Note 10    [2005] EWCA Crim 819.    [Back]

Note 11    [1984] QB 795, 811.    [Back]

Note 12    Johnston v Youden [1950] 1 KB 544, 546, by Lord Chief Justice Goddard.    [Back]

Note 13    In any event, the rule that the secondary participant must know of all essential elements of the principal offence has been departed from in a range of cases (although no general principle can be derived from such cases) including: Carter v Richardson [1974] RTR 314 and Blakely and Sutton v DPP [1991] RTR 405.    [Back]

Note 14    [1984] QB 795, 811.    [Back]

Note 15    Above.    [Back]

Note 16    [1984] QB 795, 812.    [Back]

Note 17    [1984] 1 QB 795, 812 (emphasis added).    [Back]

Note 18    [2005] EWCA Crim 819, [36] to [38].    [Back]

Note 19    Above, [40].    [Back]

Note 20    Above, [36].    [Back]