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Briefing papers
INTRODUCTION
5.87
A "mercy" killing is a killing where the killer
genuinely believes that it is in the best interests of the victim
to die, for example, because the victim is terminally ill and
in great pain. A "mercy" killing is a consensual killing
only if the victim consents to being killed. Under the current
law, a "mercy" killing that that is not a consensual
killing is always murder, unless the defendant can prove diminished
responsibility in which case he or she is guilty of manslaughter.
5.88
Under the current law, a consensual killing, whether or not
a "mercy" killing, is always murder unless the killing
is committed after entering into a suicide pact in which case
it is manslaughter.
ALERT Response
There is no direct issue taken with the above definitions except
that by way of observation, to what extent does the victim intend
such consequences as set out above? It is necessary for the courts
to be acutely aware of what is happening in this scenario - pain
should be separated from the element of suffering. Pain is organic,
physical. Suffering is emotional, loneliness, despair, worry
etc. It is important for the courts to know that pain can be
relieved. If the doctor / carer cannot relieve the pain, the
principle is - don't kill the patient, kill the pain.
In the Dutch experience, of
those who have requested assisted death or assistance in suicide,
pain was the major reason in only five per cent of the cases.
With only rare exceptions, people who previously asked for assisted
suicide completely changed their minds when their pain was controlled.
In submission, this must bear
upon the victim's intention to proceed with an assisted death
and for this reason any judicial assessment must be unfettered
when considering sentence in relation to the individual cases
that come before the Courts.
5.89
Our proposals will not affect the fundamental principle that
it is always a serious offence to kill another person intentionally
even if the killer believes that it is in the best interests
of the victim ("mercy" killing) and even if the victim
consents ("consensual killing").
ALERT Response
It is agreed that intentional
killing is always a serious matter and that it is all the more
reason why there should not be graded categories of murder but
rather, continue to allow the courts to apply the current law
on an individual case-by-case basis and the jury (in a trial
by jury) to make their own assessment when called upon to do
so. They see the defendants and can decide whether the individual
who presents before them at court is a depressed "mercy"
killer. It is far safer to keep the idea that to kill is murder
than to put the offence into codified categories. The English
Common Law Tradition has enshrined principles that the courts
must be allowed to continue to apply in a practical manner.
5.90
We believe that in the majority of cases of "mercy"
killings and consensual killings committed after entering into
a suicide pact, the person carrying out the killing is likely
to be suffering from severe depression.
ALERT Response
Why do you believe that the
killer is likely to be suffering from severe depression?
On what basis do you make that statement? The existence of depression
does not follow automatically. Why should it do so? The killer
may be craven to a range of behavioural traits and motives -
everything from anxiety and greed to an entrenched obsession
with a humanist political agenda.
To make a wide assumption of
the kind enunciated in paragraph 5.90 is extremely dangerous
insofar as on the one hand, the indication is given that intentional
killing remains a serious matter but on the other hand, there
is a category in law that allows for a conviction to be applied
that is something less than murder.
An analogy can be drawn in the
above instance with a bank robber who finds himself in court
after having been caught robbing a bank. It is akin to allowing
the robber to plead to the lesser charge of Theft on the basis
that he was acting under an honest belief (and he is allowed
to plead this honest belief in his defence) that robbing banks
was not wrong.
FOCUSING ON DEPRESSION
AND NOT CONSENT
5.91
Under the current law, the depressed killer who kills pursuant
to a suicide pact is at an advantage. The law assumes that he
or she is severely depressed. By contrast, the severely depressed
killer who is not a party to a suicide pact has to prove diminished
responsibility. This, at least, in theory, should be difficult
because reactive depression does not arise from a condition of
"arrested or retarded development of mind or any inherent
causes or induced by disease or injury". The problem has
to some extent been overcome by pretending that the problem does
not exist.
[4:19]:
A particular problem relates to long term carers who accede
to the request of their terminally ill partners to kill them.
If a carer kills a terminally ill partner in pursuance of a suicide
pact, the carer is able to secure a conviction of manslaughter
by virtue of the defence of killing after entering into a suicide
pact.
Where there is no suicide pact, what in practice happens is that
the carer pleads diminished responsibility on the basis of reactive
depression arising from the strain of looking after their partner.
The difficulty is that reactive depression does not easily fit
with the requirement that an abnormality of mind must stem from
one of the stipulated causes. However, that problem is frequently
"swept under the carpet" in order to ensure that the
carer is convicted of manslaughter and not murder.
ALERT Response
Just because reactive depression
does not fit within the category of "arrested or retarded
development of mind or any inherent causes or induced by disease
or injury" is not a reason that justifies a weakening of
the legal threshold for what remains effectively, an intentional
killing, unless it comes within the explicit defence threshold
of diminished responsibility.
On what basis does the Law Commission assert that the problem
is frequently "swept under the carpet" in order to
obtain a particular result in court? Are there instances of this
happening that have been brought to the Law Commission's attention?
Has this been done to illustrate what may be a wider social problem
that has not been previously subject to public debate?
Although there may be some difficulties
in deciding where to draw the line in individual court matters,
it can never be a reason to fetter the court's discretion in
assessing what penalty should reasonably be applied on a case-by-case
basis.
5.92
We believe that the current partial defence of killing after
entering into a suicide pact is unsatisfactory for the reasons
[outlined by paragraph 4:19]:
We are provisionally proposing that it should be abolished.
5.93
Instead, we envisage that deserving cases that currently come
within the suicide pact defence, and also deserving cases that
the defence does not currently cater for, should be accommodated
by the partial defence of diminished responsibility.
ALERT Response
There appear to be apparent
difficulties arising out of paragraphs 5.92 - 5.93 in respect
of a definition required for 'deserving cases'. What other cases
does the Law Commission anticipate catering for? Do they not
have current provisions?
Does the Law Commission anticipate making a more detailed provision
for its proposal at some future date?
Are the above provisions anticipated
under paragraphs 5.94 - 5.95?
5.94
Under our proposals, the defendant pleading diminished responsibility
will no longer have to prove that his or her abnormality of mental
functioning arose from a particular condition. Instead, the defendant
will have to prove that it arose from an "underlying condition".
An "underlying condition" does not have to be one that
exists independently of the external circumstances that give
rise to the killing. Consequently, the partial defence of diminished
responsibility will be able to cater legitimately for cases of
consensual or "mercy" killing where the abnormality
of mental functioning, normally severe depression, was a significant
cause of the killing.
5.95
It follows that under our provisional proposals, a professional
carer, for example, a doctor or nurse who carries out a consensual
or "mercy" killing is guilty of "first degree
murder" since it is highly unlikely that either will satisfy
the requirements of the diminished responsibility defence.
ALERT Response
What is meant by an underlying
condition? Does it mean that the defendant does not have to have
a pre-existing psychiatric diagnosis? If so, does this mean that
the court can accept the defence of a defendant who found the
circumstances of caring for a patient so upsetting that it unhinged
them?
This is a dangerous legal road
to travel down.
Since doctors and nurses are,
in many cases, often the primary carers and apart from the professional
compromise that would result from becoming too personally involved
with their patient's health management, contrary to what is said
in paragraph 5.95, the said proposal would allow even a doctor
or nurse involved in the assisted death of a patient to plead
to a lesser offence on the basis that their "underlying
condition" was their distress at the patient's predicament.
Just as the saying "Patriotism
is the last refuge of a scoundrel" suggests a position of
last resort, so this proposal provides the killer with a legal
safety net that will enable him /her to avoid a charge of murder
should s/he have to face allegations in court at a later date.
Again, there is an analogy with
the man who comes home and finds another man in bed with his
wife. In a jealous rage, the husband shoots and kills the wife's
lover. It is an open question as to the severity of the penalty
he will receive from the court. It is likely that he may receive
a light punishment. In so doing, Society sends out a message
that this matter is not going to be accorded the degree of severity
that say, killing a policeman will have whilst the killer is
performing a terrorist act. In other words, the situation in
which he finds himself may generate a popular (but misplaced)
sympathy for his predicament. The fact remains that he has killed
a man.
The current legal position carries
far more certainty and allows the judges to exercise their discretion
in individual cases. To weaken the law and then to allow a defence
to be run that I, as a carer, whether professional or domestic,
killed my charge because I was suffering from depression (as
distinct from a psychiatric condition existing separately and
distinctly from the stress that I am experiencing as a result
of caring for my sick and disabled charge) cannot be right and
allows too great an opportunity for abuse.
The legal position must therefore
remain on the issue of determining whether someone (especially
a carer) is suffering from a psychiatric diagnosis or otherwise
and allow the courts to interpret the law as it now stands.
PROVISIONAL PROPOSAL
5.96
We provisionally propose that the partial defence of killing
after entering into a suicide pact should be abolished.
5.97
Under our provisional proposals, the severely depressed "mercy"
killer will be guilty of "second degree murder" if
he or she successfully pleads diminished responsibility. We emphasise
that whether or not the victim consented is irrelevant to the
defence of diminished responsibility. However, in some cases
where the plea of diminished responsibility is successful, the
victim will have consented to being killed. We invite views as
to whether in cases where the plea of diminished responsibility
is successful and the victim consented to being killed, the defendant
ought to be convicted of manslaughter rather than "second
degree murder."
ALERT Response
No. For the reasons set out
above, we would oppose any changes that put the English Law on
Murder into categories. Neither is manslaughter an alternative
in this instance.
(A) In this paper, we use the
term "mercy" killing with caution. Any "mercy"
being shown is perceived as being shown as much by the victim
to the carer, in relieving the carer of his or her caring duties
and hence the cause of the continuing stress, as by the carer
to the victim in killing him or her.
(B) For more detailed discussion,
see Part 8 of our full Consultation Paper.
"MERCY"AND
CONSENSUAL KILLINGS Provisional Proposal
6.13
We provisionally propose that the partial defence of killing
after entering into a suicide pact should be abolished. (Paragraph
5.96)
See 6.14 (1):-
Questions
6.14
We ask whether consultees agree that:
(1) The partial defence of killing after entering into a suicide
pact should be abolished.
ALERT Response
Yes.
(2) All cases of "mercy" and consensual killing should
be "first degree murder" unless the defendant can prove
diminished responsibility.
ALERT Response
Yes.
6.15
We invite views on whether, if the defendant establishes the
partial defence of diminished responsibility and the victim consented
to being killed, the conviction should be one of manslaughter
rather than "second degree murder"?
ALERT Response
No to manslaughter - and murder
should not be put into categories.
ALERT
27 Walpole Street
London
SW3 4QS
Tel: (020) 7730 2800
Fax: (020) 7730 0818
Website: www.donoharm.org.uk/alert
ALERT against Euthanasia Co. Ltd No.05680744
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