THE Director of Public Prosecutions has said she would be aiding a crime if she granted a request from a terminally ill woman to outline what factors would be considered when deciding whether to prosecute for assisted suicide.
Lawyers for Claire Loftus, the DPP, have told the High Court that she is very concerned not to set out "a road map" under which a person may more safely commit a crime and avoid prosecution.
Counsel Paul O'Higgins, for the DPP, told a three-judge High Court that providing factors relevant to the DPP's prosecutorial discretion before a crime of assisted suicide occurs would amount to the DPP helping someone avoid prosecution.
Mr O'Higgins was making submissions in a landmark challenge to Ireland's absolute ban on assisted suicide by MS sufferer Marie Fleming.
"I can't make it (assisted suicide) lawful by any advance indication that it won't be prosecuted in a certain way," said Mr O'Higgins.
Ms Fleming (58) is challenging a section of the 1993 Criminal Law Suicide Act which makes it an a offence, punishable by up to 14 years in prison, to help someone take their own life.
Alternatively, she wants an order requiring the Director of Public Prosecutions to issue guidelines setting out what factors are taken into account in deciding whether to prosecute anyone who helps her to die at a time of her choosing.
Mr O'Higgins said it was "simply unacceptable in a modern democracy" for the DPP to grant immunity from prosecution.
It would effectively be "quasi-legislating" when the DPP could do neither, he said.
While the DPP recognised the situation confronting Ms Fleming is "appalling" and it was reasonable for her to seek guidelines to avoid her partner Tom Curran being prosecuted, should he assist her in taking her own life, what was being sought was outside the constitutional remit of the DPP, added Mr O'Higgins.
The DPP in Ireland has issued guidelines relating to prosecution of crime. But Mr O'Higgins said those were general and effectively indicated the more serious the crime, the more likely a prosecution.
Earlier, the Irish Human Rights Commission said it considers a person has a right to take their own life in defined and extreme circumstances.
Frank Callanan, counsel for the commission, said he wanted to avoid using the term "right to die" as that was "emotive and not entirely accurate".
Shane Murphy, counsel, for the State, said the DPP must take into account all factors in deciding whether to prosecute but could only do so after commission of an offence.
The case continues.