Thursday 22 March 2018

DPP would 'aid crime' if she revealed factors for assisted suicide prosecution

Marie Fleming is taking a landmark case to establish a right to end her life with assistancepictured here with her partner Tom Curran
Marie Fleming is taking a landmark case to establish a right to end her life with assistancepictured here with her partner Tom Curran

Tim Healy

THE DPP 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, the High Court heard today.

The DPP was very concerned not to set out "a road map" under which a person may more safely commit a crime and avoid prosecution, Paul O'Higgins SC, for the DPP, argued.

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. It would effectively be "quasi-legislating" when the DPP could do neither, he said.

It was "simply unacceptable in a modern democracy" for the DPP to grant immunity from prosecution.

Mr O'Higgins was making submissions on the third day of an action by Marie Fleming (58), who is in the final stages of Multiple Sclerosis (MS) and is seeking court orders permitting her be lawfully assisted take her own life at a time of her choice.

She also wants orders requiring the DPP to set out what factors are taken into account in deciding whether to prosecute for assisted suicide.

While the DPP recognised the situation confronting Ms Fleming is "appalling" and it was reasonable for her to seek prosecutorial 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, Mr O'Higgins said.

The DPP has issued guidelines relating to prosecution of crime but said those were general and effectively indicated the more serious the crime, the more likely a prosecution, he said.

He agreed with Mr Justice Nicholas Kearns that Mr Curran could, before any comtemplated offence of assisted suicide, write to the DPP outlining that certain safeguards as stipulated by the UK DPP and the Canadian courts for assisted suicide cases were complied with. Such a letter could be similar to "a will", the judge remarked.

The DPP could take such correspondence into account only after any crime was commiteed, Mr O'Higgins said.

Suicide is not illegal here but Section 2.2 of the Criminal Law Suicide Act 2003 provides an absolute ban on assisting suicide.

Ms Fleming contends Section 2.2 breaches her rights to life, privacy, autonomy and equality under the Constitution and European Convention on Human Rights.

The case is being heard by a three judge High Court comprising the President of the High Court, Mr Justice Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.

Earlier, the Irish Human Rights Commission said it considers a person has a right, flowing from their personal autonomy rights, to take their own life in defined and extreme circumstances.

Frank Callanan SC, for the Commission, said he wanted to avoid using the term "right to die" as that was "emotive and not entirely accurate".

He agreed with Mr Justice Hogan another way of looking at Ms Fleming's case was whether the State, in criminalising assisted suicide, could compel a person to live on and endure a "horrible and unimaginable death" that in other circumstances would amount to torture.

In detailed submissions, the Commission has asked the court to consider if the criminalisation in absolute terms of assisted suicide here is justified given its impact on severely disabled and terminally ill people who may wish to take their own lives but cannot.

Shane Murphy SC, for the State, said a person who fears they may be prosecuted for an offence may lawfully communicate with the DPP who must take that communication into consideration. The DPP must take into account all factors in deciding whether to prosecute an offence but could only do so after commission of that offence, he said.

The DPP may issue guidelines relating to matters to be taken into account in exercising her discretion on prosecution but that was a matter for the DPP herself, counsel stressed.

The case resumes next Tuesday.

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