The Law Commission

PART 7

'MERCY' AND CONSENSUAL KILLINGS

INTRODUCTION

7.1      In Part 1, we said that the issue of 'mercy' killing falls within the scope of our terms of reference only in so far as it relates to the grounds for reducing a more serious to a less serious homicide offence. We have considered it carefully in that context both in the CP and during the consultation process.

7.2      However, we have decided that a recommendation for a specific partial defence of 'mercy' killing should await a further and more detailed consultation exercise specifically concentrating on the issue. We quite simply did not have the time that we would have needed to conduct a full consultation on such an important issue. However, the issue is of such importance and topical interest that we thought that we should devote a Part of our report to it. Further, we are recommending that there should be a full consultation on the issue.

7.3      'Mercy' killings pose a particular problem. Although they are intentional killings, and thus in principle fall in the top tier of the law of homicide, they commonly share a distinctive quality. A 'mercy' killing involves an intention to prevent the continuation of one kind of harm (extreme pain and suffering) to a person by doing another kind of harm (killing) to the very same person. One consultee observed that, "The mental element is deeply ambiguous, and not wholly aligned with the act performed – a highly anomalous situation for the law to take account of". Lord Justice Buxton commented that:

The difficult paradox thus arises that a category of killing marked off in analytical terms as the most serious, and attracting the most serious penalty, will be… inhabited by killers who in moral terms attract the most sympathy.

All 'mercy' killings are unlawful homicides

7.4      The law of England and Wales does not recognise either a tailor-made offence of 'mercy' killing or a tailor-made defence, full or partial, of 'mercy' killing. Unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide pact, if the defendant ("D") intentionally kills the victim ("V") in the genuine belief that it is in V's best interests to die, D is guilty of murder.^[1] This is so even if V wished to die and consented to being killed.

7.5      D is entitled to be convicted of manslaughter rather than murder if D proves that:

(1) he or she was suffering from diminished responsibility at the time of killing V;^[2]

(2) he or she was a party to an agreement with V which had as its object the death of both of them, irrespective of whether each was to take their own life, and it was D's intention, when entering into the agreement, to die pursuant to the agreement.^[3]

7.6      The current law does not recognise the 'best interests of the victim' as a justification or excuse for killing. What it does, instead, is to acknowledge, to a very limited extent, that the consent of V can be relevant in the context of suicide pacts. However, the consent of V does not operate to justify the actions of the survivor of the suicide pact. Rather, combined with the fact that the survivor intended to kill him or herself as part of a pact, V's consent partially excuses the actions of the survivor.

7.7      Under the current law, the compassionate motives of the 'mercy' killer are in themselves never capable of providing a basis for a partial excuse. Some would say that this is unfortunate. On this view, the law affords more recognition to other less, or at least no more, understandable emotions such as anger (provocation) and fear (self-defence). Others would say that recognising a partial excuse of acting out of compassion would be dangerous. Just as a defence of necessity "can very easily become simply a mask for anarchy",^[4] so the concept of 'compassion' - vague in itself - could very easily become a cover for selfish or ignoble reasons for killing, not least because people often act out of mixed motives.

A mitigating factor for the purposes of fixing the minimum term of the life sentence for murder

7.8      The penalty for murder is a mandatory sentence of life imprisonment. The sentence comprises three components, the first of which is the 'minimum term' that the convicted person must serve before he or she can be considered for release on licence. Once the trial judge has identified the starting point of the minimum term, he or she must adjust it upwards or downwards to reflect the aggravating and mitigating features of the murder. In order to assist judges, Parliament has specified a number of factors that may aggravate or mitigate a particular murder.^[5] One of the mitigating factors is a belief by D that the murder was an act of mercy.^[6] Whether D did believe that the murder was an act of mercy is a matter for the trial judge, not the jury, to determine.

PREVIOUS RECOMMENDATIONS FOR REFORM

The Criminal Law Revision Committee

7.9      In 1976, the Criminal Law Revision Committee ("the CLRC") put forward for consideration a new offence of 'mercy' killing.^[7] The offence would have been punishable by a maximum term of imprisonment of two years. It would have required that D believed V to be:

(1) permanently subject to great bodily pain or suffering;

(2) permanently helpless from bodily or mental incapacity; or

(3) subject to rapid and incurable bodily or mental degeneration.

A further requirement would have been that D killed 'from compassion'. The offence, therefore, combined a 'quality of life' justification with an excusatory factor (acting out of compassion). However, the offence made no reference to V's state of mind and, in particular, there was no requirement that V had to have consented to being killed or, at least, had not expressed dissent.

7.10      Following critical comment, the CLRC in its final report declined to recommend the creation of such an offence:

It was said that our suggestion would not prevent suffering but would cause suffering, since the weak and the 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.^[8]

It is clear that the CLRC was influenced by the criticism that its suggested offence of 'mercy' killing took no account of whether V wished to be killed.

The Select Committee of the House of Lords

7.11      In 1989 the Select Committee of the House of Lords ("the Nathan Committee") published a report in which it considered the issue of 'mercy' killing.^[9] The Nathan Committee thought that abolition of the mandatory life sentence would adequately cater for such cases.^[10] Implicitly, the Nathan Committee may have been saying that it is right to label cases of 'mercy' killing as murder.

PUBLIC ATTITUDES TO 'MERCY' KILLINGS

Research by Professor Barry Mitchell^[11]

The 2003 survey

7.12      In recent years Professor Barry Mitchell has conducted a number of surveys of public opinion in relation to unlawful homicides. In 2003 Professor Mitchell was commissioned to undertake research in connection with the Law Commission's project on Partial Defences to Murder.^[12] He conducted a total of 62 interviews with members of the public in which he invited them to comment on 10 scenarios. Specifically, he asked interviewees to grade the scenarios in terms of their seriousness. One of the scenarios was entitled 'The Mercy Killing' in which a man had nursed his terminally-ill wife for several years. Eventually, he gives in to her regular requests that he should 'put her out of it' and he smothers her with a pillow.^[13]

7.13      Interviewees generally regarded this scenario as the least serious. 58 of the 62 interviewees placed it in the three least serious scenarios, with 47 interviewees treating it as the least serious. 35 interviewees thought that the husband should not be prosecuted. Only 14 interviewees favoured a sentence of imprisonment and, of those, 11 thought that the term should be measured in single figures.

7.14      No less than 41 interviewees identified the wife's request to die as an important factor and, of those, 26 thought that there should be no prosecution. On the other hand, nine of the 35 interviewees who advocated no prosecution did not treat the request to die as significant and their views would have been the same even if the wife had not requested to be killed. 24 interviewees mentioned the husband's good motive as a significant consideration and 13 referred to the wife's poor quality of life. Three interviewees were concerned that the law would be open to abuse if there was to be no prosecution in the case of a 'mercy' killing.

7.15      Inteviewees also said that they would be even more sympathetic to the husband if he had become mentally ill, for example clinically depressed.

The 2005 survey

7.16      In 2005 Professor Mitchell conducted a further survey.^[14] The survey was conducted by convening five groups of people with each group meeting on two separate occasions separated by a period of one week. In total, 56 people attended both meetings. The first meetings concentrated on discussing different kinds of homicides with a view to identifying variations in the seriousness of homicides. Discussions in the second meetings focused on the sentencing of convicted killers.

7.17      In his report, Professor Mitchell devoted a section to what he termed "the perennial problem of mercy killing". He said this:

It was invariably accepted that provided there is clear evidence of the victim's wish to die, such cases are amongst the least serious of homicides. Where there is no such evidence, opinions were less clear, and that meant that where the victim is unable to indicate a desire to die participants found it more difficult to express a view on the gravity of the killing, even assuming the killer was motivated solely by compassion. In general, they thought that the homicide would be more serious, though not necessarily amongst the most serious. Participants said it would obviously be vital to know whether the case was a "genuine mercy killing" – had the victim truly and freely wanted to die, and was the killer's motive a "good" one? It was this that concentrated participants' minds most of all. Virtually all suggested that there ought to be some form of official inquiry into what had happened, and that a formal prosecution or police investigation might serve this purpose. Where the case was one of "genuine mercy killing", the most punitive suggestion was for a short period of imprisonment, and many participants felt that a community- based disposal, with the emphasis on counselling for the killer, would be appropriate.^[15]

OUR TERMS OF REFERENCE AND THE SCOPE OF OUR CONSULTATION

7.18      Our terms of reference said that:

The review will only consider the areas of euthanasia and suicide inasmuch as they form part of the law of murder, not the more fundamental issues involved which would need separate debate.^[16]

In the CP, we said that we would not be addressing issues which were "too close to one falling outside the scope of the review".^[17] We added that we would not be considering justifications for killing.^[18] In the CP, we stated:

In theory, consideration of whether the simple fact that a killing was consensual, or was a 'mercy' killing, or both, should reduce what would otherwise be murder to a lesser offence is within our terms of reference. However, that has not persuaded us to address these issues in that simple form. Largely the same extensive range of issues that crop up in any attempt to address the question whether killing with consent or 'mercy' killing should be legalised, also crops up when the question is whether these factors should by themselves reduce "first degree murder" to a lesser offence.^[19]

Accordingly, in the CP, we did not ask consultees whether they thought there should be either a specific offence of 'mercy' killing or a partial defence of 'mercy' killing.

THE WIDER CONTEXT

7.19      Concurrently with our review of the law of homicide, there has been an on-going debate in Parliament as to whether a doctor should in certain circumstances be allowed to prescribe medication which a patient could take to end his or her own life. The Bill that engendered this debate was Lord Joffe's Assisted Dying for the Terminally Ill Bill.^[20] The Bill was originally introduced in November 2004 and was re-introduced in November 2005. The Bill, if enacted, would allow a doctor to lawfully assist^[21] V to commit suicide provided V:

(1) was at least 18 years of age;

(2) was intellectually capable;

(3) was terminally ill in the sense of having less than six months to live;

(4) was suffering unbearably; and

(5) provided a signed request to his or her doctor.

Although the Bill received its second reading, an amendment was passed in the House of Lords in May 2006 to delay the Bill by six months.^[22]

OUR PROVISIONAL PROPOSALS

7.20      Taking account of empirical research, in the CP we suggested that the cases most deserving of mitigation are killings in which long-term family carers have become progressively more depressed and mentally ill, usually because of the increasing burden of care as they become older. In addition, we pointed out that suicide pacts and consensual killings usually involve male carers killing their spouses and that this raised important gender issues.^[23]

7.21      Accordingly, we provisionally proposed that the definition of diminished responsibility should be expanded, partly to accommodate more easily than it does at present cases of severely depressed carers who kill. D would have to prove that an abnormality of mental functioning (arising from an underlying condition) played a significant part in the killing by interfering with the D's capacity for rational judgement. By limiting the defence in this way, we were anxious that the defence should not benefit men whose killing of their spouses or partners with the consent of the latter was really nothing more than a reflection of their violent and controlling, but not clinically abnormal, personalities. A successful plea of diminished responsibility would result in a conviction of second degree murder.

7.22      In the CP we also provisionally proposed that section 4 of the Homicide Act 1957 (killing pursuant to a suicide pact) should be repealed. We did so because we thought that it is an unsatisfactory partial defence in that it is incapable of affording a partial defence in some deserving cases and capable of providing a defence in some undeserving cases.

7.23      In addition, we invited views as to whether it ought to be possible on a charge of murder or manslaughter for a jury to convict D of complicity in suicide if D kills V as part and parcel of a course of conduct that was designed to end in the deaths of both D and V.

RESPONSES TO OUR PROVISIONAL PROPOSALS

7.24      A number of consultees believe that we have been far too cautious in not proposing either a tailor-made offence of 'mercy' killing or a tailor-made partial defence of 'mercy' killing.^[24] In making this criticism, some of these consultees have linked it with a further criticism, namely that our reformulated partial defence of diminished responsibility would not capture all worthy cases of 'mercy' killing.

7.25      The criticism levelled at our reformulated definition of diminished responsibility was two-fold. First, it would not cater for rational 'mercy' killers, including professional or semi-professional carers. Secondly, it would not capture many cases of depressed carers.

CONCLUSIONS

A partial defence of 'mercy' killing

7.26      Despite criticism from some consultees, we remain of the view that the question whether there should be a partial defence of 'mercy' killing raises many of the same issues raised by the debate as to whether euthanasia should be legalised.

7.27      Some consultees who have criticised us for not putting forward a tailor-made offence or partial defence appear to have overlooked the fact that in the CP we said that we would not be considering justifications for killing. Each proposal that we have received setting out a tailor-made offence or partial defence is based wholly or partly on justifications for 'mercy' killing.

7.28      Consequently, we do not agree with the criticism that, by declining to consider a tailor made offence or partial defence of 'mercy' killing, we have conflated issues relevant to a complete justificatory defence of euthanasia, with in some sense separate issues relevant to a partial defence of 'mercy' killing. The fact is that any tailor-made offence or defence that focuses on the plight of V ('quality of life' justification) and V's consent ('autonomy justification') raises issues of justification that were beyond the scope of our review to address adequately with the time and resources available to us.

7.29      There remains the possibility of a tailor-made offence or partial defence which is centred on the concept of 'acting out of compassion'. However, we continue to believe that there would need to be a much wider debate before concluding that the concept of 'compassion', as a motive, is in itself a sufficiently secure foundation for a 'mercy' killing offence or partial defence.

7.30      In the CP we did not ask a question whether 'mercy' killing should be a partial defence. Although those consultees who thought we were wrong not to do so have expressed their views on the issue, others have not. It is highly likely that the latter would have expressed a view had we raised the question in that form. It is too important and socially significant a subject for us to make a recommendation without explicitly consulting on the question.

7.31      In addition, were we to recommend a partial defence of 'mercy' killing, there would be very difficult questions regarding its scope. For example, to what extent should the defence be open to secondary parties? Should it be limited to those who have a close personal relationship with V or should it also be available to professional and semi-professional carers? In relation to this second question, Dr Jonathan Rogers has suggested that the solution lies in distinguishing between, on the one hand, professional carers who kill, and on the other hand, family members who kill.^[25] The idea is that the latter should have a partial excuse when the former would not.

7.32      We recognise the force of this argument, but there are problems with it. Justificatory considerations are liable to feature in the motivations of both groups. Moreover, some might argue that it is actually less excusable to rely on a purely personal judgement that another's life is not worth living than it is to rely on a professional judgement to that effect (for which one is responsible to others as a professional). We offer no view on that argument but it shows the difficulty that must be faced in coming to conclusions that will be acceptable to a large majority of people.

7.33      While recognising that some consultees have properly raised the issue of whether there should be an offence or partial defence of 'mercy' killing, our conclusion is that it would not be right to make any recommendations on the issue in this report. It is a discrete issue which can only be properly addressed by a subsequent and specific review of this particular aspect of the law of homicide. As we stated above, we did not have the time to conduct the extensive consultation that is essential on such an important topic.

Reformulating the defence of diminished responsibility

7.34      We recognise the force of some of the criticism that consultees have made of our proposed reformulation of the defence of diminished responsibility as set out in the CP (see Part 5 of this Report). In particular, Lord Justice Buxton suggested that the reformulation would do little or nothing to assist even severely depressed 'mercy' killers. He questioned whether the reformulation that we put forward in the CP would be capable of catering for most cases of 'mercy' killing because most of those who committed a 'mercy' killing would be unable to satisfy the criteria that we were proposing for the defence.

7.35      Having considered the response of the Royal College of Psychiatrists to our provisional proposals, we have now changed the criteria for diminished responsibility in an attempt (amongst other goals) to meet this point. Like the Royal College of Psychiatrists, we are confident that this change will not open a 'barn door' through which any killer suffering from depression can walk through to claim mitigation. Overall, the criteria that must be met for a successful plea of diminished responsibility will remain stringent.

7.36      We are now recommending that the substantial impairment of D's capacity must relate to:

(1) understanding the nature of his or her conduct;

(2) forming a rational judgement; or

(3) controlling him or herself

and that the abnormality must arise from a medical condition and that the abnormality must provide an explanation for D's conduct.^[26]

7.37      We recognise that our proposed reformulation will not assist rational 'mercy' killers and those who understand the nature of what they are doing even if they kill V with the latter's consent. This will disappoint some consultees but the defence of diminished responsibility should not be stretched so far that it becomes a backdoor route to partial excuse for caring but rational 'mercy' killers.

Repeal of section 4 of the Homicide Act 1957

7.38      Our provisional proposal was that section 4 of the Homicide Act 1957 should be repealed. A majority of our consultees agreed that it should be repealed and that our reformulated definition of diminished responsibility would cater adequately for deserving cases that currently fall within section 4 of the Homicide Act 1957. However, a minority of consultees disagreed because they believed that it would leave those who rationally entered into and survived a suicide pact facing a conviction for first degree murder.

7.39      Despite the support that we received for our proposal, we have concluded that it would be inappropriate to recommend the repeal of section 4 in the absence of any wider review of 'mercy' and consensual killings. We are not aware that in practice, the current law is proving problematic. Further, we recognise the concerns expressed by those who opposed the section's repeal, namely that a rational and deserving person who is currently able to plead section 4 would be unable to successfully plead diminished responsibility.^[27] It appears that for those who successfully plead section 4, custodial sentences of two to three years represent the upper limit. We do not believe that a mandatory sentence of life imprisonment with a very low minimum term followed by a life long period on licence would be appropriate.

Diminished responsibility combined with the victim's consent

7.40      In the CP,^[28] we invited views as to whether, in cases where the D's diminished responsibility was a significant cause of his or her conduct in killing V and V consented to being killed, the presence of both diminished responsibility and V's consent should reduce the offence to manslaughter.

7.41      A large majority of consultees thought that it would be wrong to allow the presence of V's consent to result in a conviction for manslaughter rather than second degree murder. We agree.

Joint suicide and complicity in suicide

7.42      Section 4 of the Homicide Act 1957 enables D to be convicted of manslaughter rather than murder if D kills V pursuant to a suicide pact. Section 2(1) of the Suicide Act 1961 provides that a person who "aids, abets, counsels or procures" V to commit suicide is guilty of an offence ('complicity in suicide') punishable with a term of imprisonment not exceeding 14 years. Section 2(2) provides that a person may be convicted of the section 2(1) offence on a charge of murder or manslaughter.

7.43      In some suicide pacts where the intention of D and V is that each should die together, D kills V by setting in train a series of events that results in V's death. In such cases a verdict of manslaughter under section 4 is available but a verdict of complicity in suicide under section 2(1) is not.

7.44      In the CP,^[29] we queried whether this was fair given that in 'die together' suicide pacts there may well have been mutual assistance and support in the acts leading up to the attempt to commit suicide together. The verdict of complicity in suicide is not available because, perhaps by chance, the survivor was the one who performed what is taken to be the key conduct which caused V's death.

7.45      We invited views on whether on an indictment for murder or manslaughter, it ought to be possible for D to be convicted of complicity in suicide if the conduct that killed V was meant by D and V to end both their lives. The views of consultees were fairly evenly divided. In the absence of strong support for such a change, we are not minded to recommend it.

FINAL THOUGHTS AND RECOMMENDATIONS

7.46      Although we are not making any recommendations for an offence or partial defence of 'mercy' killing, we make the following observations.

7.47      First, Professor Mitchell's surveys suggest that public opinion is generally not unsympathetic to those who believe that they are killing as an act of mercy, particularly if V has expressed a wish to be killed. The surveys reveal very little support for the imposition of a mandatory sentence of life imprisonment in genuine cases of 'mercy' killing. In addition, there is no clear evidence of a majority favouring no kind of prosecution in such cases.

7.48      Secondly, Parliament has already afforded statutory recognition to killings committed as acts of mercy. It has identified killing out of mercy as a potentially mitigating factor in fixing the length of the minimum term following a conviction for murder. There are three reasons why it is arguable that it would be more satisfactory if, in cases of rational 'mercy' killing, Parliament were to make 'mercy' killing a partial defence rather than purely a matter going to mitigation of the minimum term. First, for a genuine 'mercy' killer, a life long licence seems neither necessary nor appropriate. Secondly, if there is a dispute of fact as to D's motive for killing V, it might be thought better that the jury, rather than the trial judge, should decide the issue. Thirdly, a partial defence would avoid the need for the practice, which concerns some of our consultees, of dressing up rational 'mercy' killing cases as ones of diminished responsibility by means of a sympathetic report from a pliant psychiatrist which the court and prosecution are content not to challenge.^[30]

7.49      We recommend that the Government should undertake a public consultation on whether and, if so, to what extent the law should recognise either an offence of 'mercy' killing or a partial defence of 'mercy' killing.

7.50      We recommend that, pending the outcome of any public consultation, section 4 of the Homicide Act 1957 should be retained.

Note 1    If D assists or encourages V to commit suicide, D commits the offence of aiding, abetting, counselling or procuring suicide contrary to the Suicide Act 1961, s 2. The offence is punishable by a maximum term of imprisonment of 14 years.    [Back]

Note 2    Homicide Act 1957, s 2. D must prove that at the time of the killing, he or she was suffering from an abnormality of mind such as to substantially impair his or her mental responsibility for the killing. Whether or not V consented to being killed is irrelevant as is whether it was in the best interests of V to be killed. The focus is on D not V.    [Back]

Note 3    Homicide Act 1957, s 4.    [Back]

Note 4    Southwark London Borough v Williams [1971] Ch 734, 746, by Lord Justice Edmund Davies.    [Back]

Note 5    Criminal Justice Act 2003, s 269 and sch 21.    [Back]

Note 6    Criminal Justice Act 2003, sch 21, para 11(f).    [Back]

Note 7    Working Paper on Offences against the Person (1976) paras 79 to 87.    [Back]

Note 8    Offences Against the Person (1980) Report 14, para 115.    [Back]

Note 9    Select Committee of the House of Lords, Report of the Select Committee on Murder and Life Imprisonment: vol 1 (1989).    [Back]

Note 10    Above, para 100.    [Back]

Note 11    Professor of Criminal Law and Criminal Justice, Coventry University.    [Back]

Note 12    Professor Mitchell’s conclusions were published as Appendix C (Brief Empirical Survey of Public Opinion relating to Partial Defences to Murder) to our report Partial Defences to Murder (2004) Law Com No 290.    [Back]

Note 13    See Appendix C paras 53 to 58.    [Back]

Note 14    The results of this survey comprise Appendix A (Report on Public Survey of Murder and Mandatory Sentencing in Criminal Homicides) to our consultation paper A New Homicide Act for England and Wales? (2005) Consultation Paper No 177.    [Back]

Note 15    Appendix A, para A.13.    [Back]

Note 16    See para 1.1(3) above.    [Back]

Note 17    Para 1.2.    [Back]

Note 18    Para 1.3.    [Back]

Note 19    Para 8.4.    [Back]

Note 20    The Bill did not seek to legalise voluntary euthanasia in the sense of making it lawful for a physician to kill a consenting patient. Rather, it would in certain circumstances prevent doctors being prosecuted for aiding, abetting counselling or procuring suicide contrary to the Suicide Act 1961, s 2.    [Back]

Note 21    Under the Bill, it would remain murder if the doctor administers the medication. Further, under the Bill relatives and friends of V acquire no protection.    [Back]

Note 22    Lord Joffe has pledged to re-introduce the Bill. In addition, on 29 June 2006, 65% of doctors at the annual conference of the British Medical Association voted against making it lawful to assist the terminally ill to die.    [Back]

Note 23    See paras 8.68 to 8.83.    [Back]

Note 24    We received different suggestions both as to what form a partial defence of ‘mercy’ killing should take and what should be its effect.    [Back]

Note 25    Jonathan Rogers, ”The Law Commission’s Proposed Restructuring of the Law of Homicide” [2006] Journal of Criminal Law 223.    [Back]

Note 26    See Part 5, para 5.112.    [Back]

Note 27    Unless the defence of diminished responsibility was benignly and loosely interpreted to cater for deserving cases. We do not believe that would improve the law.    [Back]

Note 28    Para 8.94.    [Back]

Note 29    Para 8.100.    [Back]

Note 30    We stress that we are saying that these are arguable reasons.    [Back]