Sunday 28 August 2016

Remy Farrell: Judgment may influence law – but this is a very human tragedy

Published 11/01/2013 | 17:00

THE result in Marie Fleming's case did not come as a great surprise to most lawyers who had followed the case. While the arguments put forward by both sides were both subtle and complex, the basic proposition that she would have had to establish to win her case was that the law criminalising assisted suicide was so unfair and unreasonable that it was unconstitutional.

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Given that many other countries have chosen to prohibit assisted suicide in a similar way, the argument was always going to be a difficult one to win.

The judgment of the divisional High Court reveals that this was very much a case of two halves.

The first part of the lengthy judgment concerns itself with the arguments as to whether the ban on assisted suicide itself was unconstitutional. Ultimately, the court found that it was not.

However, it is the second half of the judgment which may well prove to be of greater practical significance in the long run.

This concerned an argument made by Marie Fleming's lawyers to the effect that there was an obligation on the DPP to publish guidelines setting out the circumstances in which the DPP would prosecute in cases of assisted suicide.

While the DPP has in the past published fairly general guidelines setting out in a very broad way the way that decisions to prosecute are made, these guidelines are not specific to particular offences.

The argument advanced on behalf of Marie Fleming was that a person who might be considering assisting somebody to end their life was in an intolerable situation, as they would not know whether they would be likely to be prosecuted as a result of their actions.

Much reliance was placed on a judgment from the House of Lords in the United Kingdom in a very similar case called Purdy, where it had been decided that the failure of the English DPP to publish guidelines specifically relating to assisted suicide prosecutions was a contravention of the European Convention on Human Rights.

The High Court rejected this argument on a number of grounds.

Firstly, on the basis that the legislation relating to the English DPP's functions and duties was different to the legislation underpinning the role of the DPP in Ireland.

Secondly, on the grounds that the European Convention on Human Rights could not be relied upon in as direct a fashion before the Irish courts as compared with the English courts.

And thirdly, because the effect of the DPP publishing guidelines in which it was made clear which circumstances would lead to prosecution and which would not undermine the role of the Oireachtas.

In other words it would offend against what lawyers generally refer to as the separation of powers, ie the distinct and different functions of the legislature, the courts and the government.

In effect, the High Court took the view that it would be highly problematic for DPP Claire Loftus to publish guidelines indicating that she would not prosecute in certain situations.

This would be equivalent to the DPP unilaterally amending the legislation, which created the offence in question to exclude certain types of conduct.

This, in turn, would amount to the DPP exercising a function that was more properly left to the Oireachtas.

Given the very real constitutional differences between Ireland and the UK, it was not surprising that the High Court chose not to follow the logic in the English case of Purdy.

However, some of the observations made by the High Court towards the conclusion of its judgment may well raise an eyebrow or two amongst constitutional purists.

Having concluded that there was no obligation on the DPP to publish guidelines and that she should deal with each case on its facts, the court went on to observe that the guidelines ultimately published in the UK in relation to the prosecution of assisted suicide cases in the aftermath of Purdy "must surely inform any exercise of discretion by the director in this jurisdiction".

In other words, while the DPP could not and should not publish guidelines, she ought to have some regard to the guidelines published in the UK.

The court went on to set out those guidelines in detail in the judgment. As one might expect, the guidelines very much militate against prosecution where a person assists in the suicide of a loved one who has made an informed and settled decision to end his or her own life due to an intolerable illness.

The High Court concluded with the following prediction: "The court feels sure that the director, in this of all cases, would exercise her discretion in a humane and sensitive fashion, while it would stress that, of course, she must retain the full ambit of that discretion to decide whether to prosecute or not."

These aspects of the judgment may well give rise to a degree of head-scratching amongst constitutional lawyers.

It might well be asked why a decision of the DPP in Ireland should be informed by guidelines prescribed in another country? What if the English DPP were to significantly amend or change the guidelines? Should regard be had to such an amendment or change?

Similarly, the prediction by the High Court that the DPP will exercise her discretion in "this of all cases" in a humane and sensitive manner might well be regarded as an encroachment or pre-empting of what may ultimately be a very difficult decision for the DPP, should it arise.

On one view, such observations by the High Court might be regarded as blurring the line so far as the separation of powers between the courts and the DPP is concerned.

Such concerns, however, probably place an undue emphasis on hard legal principle and embedded constitutional dogma at the expense of the very human tragedy that underlies the judgment.

It is clear from any reading of it that the court could not help but be deeply moved and humbled by the powerful evidence of Marie Fleming and her description of her current medical condition.

Whatever the legal arguments that may be made about the observations of the High Court as to the nature of any decision that might be made by the DPP, it may well be that they are of some comfort to Marie Fleming and her family and the very difficult position that they find themselves in.

Remy Farrell is a senior counsel

Irish Independent

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