Critically evaluate whether incidents of mercy killing should b prosecuted as murder or manslaughter in English criminal law

“Murder is when a man of sound memory, and of the age of discretion, unlawfully kills within any country of the realm, any reasonable creature in existence under the King’s peace, with malice aforethought, either expressed by the party or implied by law. ” Euthanasia or ‘mercy killing’ is generally taken to mean the practice of helping severely-ill people to die, either at their request or by taking the decision to withdraw life support. There are different types of euthanasia.

There is voluntary active euthanasia where death is at the request of the patient; this is the most controversial, non-voluntary active euthanasia whereby the person does not have the mental ability to request euthanasia. There is also involuntary active euthanasia where it is against the wishes of the patient. However, there is no universally agreed definition of euthanasia. Under the law in England and Wales, deliberate or ‘active’ euthanasia will normally leave anyone assisting suicide or death liable for murder or manslaughter if the can prove provocation or diminished responsibility.

Euthanasia has been ‘decriminalised’ in some European countries, such as The Netherlands, Belgium and Switzerland. As early as 1984, the Dutch Supreme Court declared that ‘voluntary euthanasia’ was ‘acceptable’, and in 2002, the Netherlands became the first EU country to legalise adult euthanasia. ‘Physician-assisted suicide’ is now practiced with increasing openness in the Netherlands. ‘Assisted suicide’ exists in Switzerland; legally condoned, it can be performed by non-physicians. Swiss law clearly decriminalises assisted suicide without the involvement of a doctor; this means that non-physicians can participate in assisted suicide.

Though the issue remains controversial, many terminally ill foreigners, including Britons, now travel to Switzerland to commit suicide, taking advantage of the Swiss rules, which are among the worlds most liberal on assisted suicide. The doctrine of double effect is well established in law. The House of Lords select committee on medical ethics stated in 1994 that a doctor may give: “treatment that would give relief, as long as the doctor acts in accordance with responsible medical practice with the objective of relieving pain and distress, and with no intention to kill.

Devlin J in Adams (1957) Crim LR 365 stressed that if an act of a doctor shortened the life expectancy of a terminally ill patient, the doctor would still be held to have caused the death of the patient even though the patient would have died a few weeks afterwards anyway. However, he went on: ‘But that does mean that a doctor aiding the sick or dying has to calculate in minutes or hours, or perhaps in days or weeks, the effect on a patient’s life of the medicines which he administers.

If the first purpose of medicine – the restoration of health – can no longer be achieved, there is still much for the doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering even if measures he takes may incidentally shorten life. ‘ This suggests that a doctor who is seeking to relieve pain may not be found to have caused the death of a patient if he only shortens life expectancy by a few minutes or hours. It must be said however, that these dictas, prima facie, seem inconsistent with causation in other contexts, i. e. such as the case of Dyson.

This may be seen as an example of the law on causation being influenced by policy considerations. This might be implied from Devlin J’s direction to the jury in Adams to apply common sense to the case. In a more recent case of euthanasia, Hooper J preferred to simply ask the jury whether it believed that the doctor’s acts were an operating and substantial cause of the death (Moor). There have been recent cases which have moved the law forward and highlight distinction between Euthanasia and the withdrawal of treatment. One landmark ruling was the 1993 Bland case (Airedale NHS Trust v Bland [1993]).

Anthony Bland was a 17-year-old left severely brain damaged after the Hillsborough Football Stadium disaster in April 1989. Tony Bland had been in a permanent vegetative state (PVS) until 1993, when his parents and the NHS hospital trust wanted permission from the High Court to withdraw the artificial nutrition and hydration that was keeping him alive. The High Court and the House of Lords agreed. The doctor’s were not liable for the death, the fundamental principle was the sanctity of life, but respect for human dignity demanded that the quality of life be considered.

Equally, it is acceptable to deny or withdraw treatment when it is futile or unduly burdensome. This is especially so in cases where the victim is kept alive using life support technology. Legally speaking, the definition of the ‘end of life’ is when a person loses the capability to breathe on his own accord and is brain dead. The same principle is applied in Malcareck and Steel, where doctors taking off a life support machine were acquitted from murder, because conventional death had already occurred.

The importance of mentioning this is to draw a distinction between the withdrawal of treatment and euthanasia. Giving someone a lethal injection would classify as the Actus Reus for murder, but a person who is already dead, cannot die again. In English law, there is a general consensus that causing another person’s death in a culpable way is the most serious of criminal offences. This reflects the high value society puts on each individuals life and the fact that to kill someone is the most permanent of injuries as Professor Ashworth writes: ‘Death is final.

This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm without justification or excuse as the most culpable of offender’ ‘Mercy’ killings pose a particular problem. Although they are intentional killings, and thus in principle, they fall in the top tier of the law of murder; they generally share a unique quality. However, the intention of the defendant is often overlooked, as the ‘good nature’ of the defendant’s intention is irrelevant when considering homicide. . This is so even if the victim wished to die and consented to being killed.

This was highlighted in the case of R v Cocker (1989) Crim LR 582 where a man had been caring for his disabled wife for years. The wife had continuously pleaded with him to kill her which after many sleepless nights he did by placing a pillow over her head; it was the view that giving someone in this situation a life sentence was unjust but the court of appeal stated that there was no alternative but to impose a life sentence because Cocker had an intention to kill his wife and he could not plead provocation, the court of appeal could not reduce his sentence out of sympathy or the thought that the life sentence was inappropriate.

The Actus Reus is clearly established, but the contentiousness of the issue lies within the intention. Cocker to many may not be taken to be ‘malicious’ in the ordinary sense of the word, but according to the test in Woolin, so long as the defendant intends death or grievously body of harm, maliciousness as mentioned by Lord Coke is automatically inferred by the court. This has lead to many such as Lord Kilbrandon in Hyam v DPP to suggest that the distinction between murder and manslaughter should be abolished and with it the compulsory life sentence.

The law of England and Wales does not distinguish either a tailor-made offence of mercy’ killing or a tailor-made defence, full or partial, of ‘mercy’ killing. He or she who assists in euthanasia, unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide pact, will be charged for murder which warrants a life sentence which is fixed by the Murder (Abolition of Death Penalty) Act 1965. The current law does not recognise the ‘best interests of the victim’ as a justification or excuse for killing.

What it does, instead, is to acknowledge, to a very limited extent, that the consent of the victim can be relevant in the context of suicide pacts. However, the consent of the victim does not operate to justify the actions of the survivor of the suicide pact. Rather, combined with the fact that the survivor intended to kill him or herself as part of a pact, the victim’s consent partially excuses the actions of the survivor. The subject of mercy killing is a highly contentious and conflict-ridden topic, raising many moral, ethical, social, philosophical, legal and religious concerns.

Many of these concerns were aired in the case of Diane Pretty, who was dying of motor neurone disease and wanted her husband to end her life without being prosecuted for aiding and abetting suicide. Her case led to a high profile legal and public debate on the issue, as her husband first applied to domestic courts (up to the House of Lords), and then to the European Court of Human Rights (ECHR) for judicial review of the refusal to give him immunity from prosecution. Had the case been successful, it would have effectively struck down the legal ban on assisted suicide.

Mrs Pretty failed because the domestic courts, in recognition of the complex moral considerations at stake, deferred to the democratic will of parliament as enshrined in the legal text. The ECHR applied the EU equivalent, the ‘Margin of Appreciation’, and rescinded from passing judgment on the issue in 2002. From a religious point of view most religions, including Christianity, do not recognise a right to die, believing life to be a divine gift. Christians also regard suicide as a sin.

Correspondingly, the English law limits anyone’s right to consent to the infliction of harm upon himself. According to Lord Mustill in Brown and others, ‘The maintenance of human life is an overriding imperative. ‘ It is also suggested that doctors and relatives may press people into accepting euthanasia against their will and for reasons not related to their welfare. The case for euthanasia is often argued on the basis of autonomy-a patient’s freedom to make decisions about his or her own treatment. However, to invoke autonomy in this way misunderstands the concept of autonomy, overlooking the principle that the patient’s freedom entails a responsibility to act ethically.

While a patient is capable of giving valid consent, a doctor has no authority to treat the patient unless that consent is given (Bland). If the law were to allow some individuals to volunteer for euthanasia, this would threaten the right to life of others, especially people who are elderly, gravely ill or disabled. Legalisation of euthanasia would make a clear statement to society that it was permissible for private citizens (e. g. doctors) to kill because they accepted the view that a patient’s life was no longer worthwhile.

If it is seen as a benefit to kill patients who consent to euthanasia, it is easy to argue that others should not be denied death simply because they cannot ask for it. As it stands the law in England and Wales by many can be seen as being strict with regards to mercy killings as result a the Law Commission has made proposals to accommodate mercy killings . In the Law Commission’s opinion, the cases most deserving of mitigation are killings in which long-term family carers have become progressively more depressed and mentally ill, usually because of the increasing burden of care as they become older.

Thus, the definition of diminished responsibility should be expanded, partly to accommodate more easily than it does at present cases of severely depressed carers who kill. The defendant would have to prove that an abnormality of mental functioning (arising from an underlying condition) played a significant part in the killing by interfering with the defendant’s capacity for rational judgment and personalities. A successful plea of diminished responsibility should result in a conviction of manslaughter. However, the criteria that must be met for a successful plea of diminished responsibility will remain rigid.

However these proposals have been criticised and opponents argue that minimising the severity of crimes in which people are killed as a result of intentionally severe violence would seriously offend many people’s innate sense of right and wrong. It would undermine the very notion of criminal responsibility at the heart of justice and would have a disastrous knock-on effect on the rest of the criminal justice system. In conclusion, it would seem that on case law and authority, there is no means by which euthanasia can be downgraded from murder to manslaughter in England.

If one is to take into consideration moral arguments, jurisdictions under which euthanasia is allowed do not lessen the conviction from murder to manslaughter; rather they give a total acquittal. So, in English law, the only way to lessen a conviction is by way of diminished responsibility as in the most recent ‘Wragg’ case. On the question whether mercy killings should be charged by manslaughter, one must appreciate that manslaughter is designed to take the brunt of cases which do not fit the stringent criteria of murder.

Manslaughter in itself is a very grave conviction, and to charge a ‘mercy killer’ with this offence would make no sense at all, as it is at odds with all precedent and case law. If one was to accept a mercy killing as being other than murder or manslaughter by way of diminished responsibility, there is no authority for propounding the view of a ‘half way house. ‘ It either should be murder, or completely legalised, hence offering a complete acquittal to defendants who should otherwise, under existing law face life imprisonment like Cocker.