Is 'Dr Death' breaking the law?

An Australian euthanasia activist has been travelling round Britain this week holding what have been described as “suicide workshops”. Is Dr Philip Nitschke breaking the law?

Section 1(2) of the Suicide Act 1961 says that a person who “aids, abets, counsels or procures” suicide — or attempted suicide — commits an offence.

Attempting to aid, abet, counsel or procure suicide or attempted suicide is also an offence under the Criminal Attempts Act 1981.

So the ultimate questions for any court would be whether Dr Nitschke’s conduct comes within these definitions and whether he had whatever degree of intention may be required by the law.

It’s clear enough from media reports that Dr Nitschke provided his audience with information about committing suicide. But is that enough?

In 1981, the Voluntary Euthanasia Society published a booklet called A Guide to Self-deliverance. After advising readers who might be contemplating suicide to think again, the booklet set out five separate methods of suicide in clear, straightforward and reasonably detailed terms.

The Attorney General asked the High Court for a declaration that distribution of the booklet was a breach of the Suicide Act. His application was dismissed. Mr Justice Woolf, as he then was, held in 1983 that the offence would be committed only if the booklet was supplied to a particular individual considering suicide and with the intention of assisting or encouraging him.

The judge said: “If ... before sending a copy of the booklet, a member of the society had written a letter, the contents of which were known to the person sending the booklet, which stated that the booklet was required because the member was intending to commit suicide, then, on those facts, I would conclude that an offence had been committed — or at least an attempted offence — contrary to section 2 of the Act.”

Distributing the book could be an offence in some circumstances, Mr Justice Woolf concluded. “But, before an offence can be established to have been committed, it must at least be proved:

(a) that the alleged offender had the necessary intent: that is, he intended the booklet to be used by someone contemplating suicide and intended that person would be assisted by the booklet’s contents, or otherwise encouraged to attempt to take or to take his own life;

(b) that while he still had that intention he distributed the booklet to such a person who read it; and,

(c) in addition, if an offence under section 2 is to be proved, that such a person was assisted or encouraged by so reading the booklet to attempt to take or to take his own life; otherwise the alleged offender cannot be guilty of more than an attempt.”

Writing about the case in his book The Pursuit of Justice last year, Lord Woolf explained why he had declined to make the declaration requested by the Attorney General. “To do so would amount to a finding that Mr Able [of the Voluntary Euthanasia Society] had committed a criminal offence”, the former Lord Chief Justice said, “and it seemed to me that only a jury should perform that task.”

This seems a good starting-point on which to judge Dr Nitschke’s actions. So long as his workshops and his comments on BBC Radio Five Live this morning amount to no more than providing information, he may well be on the right side of the law. If he is not encouraging suicide, as he insisted, then it would be hard to establish that he had the necessary intention to commit an offence.

That argument seems to have satisfied immigrations officials who allowed him to enter Britain last week.

The law will be worded differently if and when the Coroners and Justice Bill becomes law. That would make it an offence for a person to do something “capable of encouraging or assisting the suicide or assisted suicide of another person”, but only if the defendant’s act was “intended to encourage or assist suicide or an attempt at suicide”.

Explanatory notes issued with the government's Bill say that the clause “does not change the scope of the current law”. It merely amends the language to make it easier to understand.

Posted at May 7, 2009 09:13 AM