Mercy Killing

by Edward Fenner, Barrister

Mercy Killing

The High Court will soon hear the case of Noel Conway, who has petitioned the court to allow a doctor to prescribe a lethal dose, if his motor neurone disease deteriorates to the extent that he is locked inside his own body. But what of the legal position of the doctor or carer who undertakes a mercy killing?

The case of Claire Darbyshire last year, which attracted widespread national press coverage, brought the issue of mercy killing back into the public domain. It highlighted the unsatisfactory situation in the law when dealing with these types of cases.

People who assist a loved one to die are labelled murderers, despite the consent of that loved one and the offender’s intent being born purely out of love and concern for the terminal and often painful state in which the deceased lived. Is this something we as a society are still comfortable with, or should parliament now consider a new offence to better reflect the circumstances? Is it now time for a sensible debate on a fourth category of manslaughter? Whether the act of mercy killing should constitute a crime at all is not within the scope of this article.

In Miss Darbyshire’s case, the Recorder of London passed a sentence of life imprisonment as he must, but set the tariff for that term to one of four years. It is believed that this is the shortest tariff ever imposed for murder, and perhaps reflects the difficult nature of the case.

In general, the law recognises those who assist a loved one to die under two separate categories; in both scenarios the law regards their actions as an offence.

First, those who only assist. In other words, their actions are not the direct cause of the death. An example of this first category might be someone who places the tablets and water necessary for an overdose before the deceased but does no more. Those persons would be guilty of the offence of encouraging or assisting in the suicide of another contrary to s.2 Suicide Act 1961 as amended by the Coroners and Justice Act 2009. The act being one capable of encouraging or assisting in the suicide of another and that was intended to assist in that suicide. A jury may consider this offence as an alternative to murder and manslaughter. This carries a maximum sentence on indictment of 14 years’ imprisonment.

The second category is where the actions of the person went beyond assistance and proved to be the direct cause of death. Using the above example of an overdose, the person would not only provide the tablets and water but administer them to the deceased with their consent. This might be because the deceased was too ill to administer them herself. In those circumstances the law demands a conviction for murder.

The CPS has issued guidance on when to prosecute individuals in mercy killing cases. Sadly, this only applies to persons in the first category. People who fall into the second category, sometimes because their loved one is unable to help themselves, face trial for murder, as in the case of Miss Darbyshire.

Those who fall into the second category have three potential partial defences to murder, which instead fall into the category of voluntary manslaughter:  diminished responsibility, loss of control and suicide pact. For too long those in the second category have sought to defend themselves using the loss of control defence.

The Claire Darbyshire case highlights the need for parliament to consider a fourth category in circumstances where the defendant had a genuine intent to help the deceased, who had consented and who had a settled mind at the time of their wish to die. Those who fall under this category may be close family members who, after years of caring for their loved ones and seeing deterioration in their state, were aware that the deceased had made a conscious decision with a sane mind that they had a settled wish to die, and did no more than to satisfy that wish. Should that type of act place the defendant in the same category of offence as someone who kills another human being in cold blood?

The inactivity of parliament in failing to address this argument, leaves the courts to deal with this type of defendant. In a number of sentencing authorities, the Court of Appeal have recognised this as a separate category of murder. That recognition lends weight to the argument for a new offence of manslaughter by causing another to die to aid their suicide. It would allow the court greater flexibility in sentencing and better recognise the unique circumstances of cases involving genuine mercy killings. Surely the offence of manslaughter better reflects the criminality involved, if parliament deems that such actions must be criminal.


FMW Law represented Claire Darbyshire in her proceedings at the Old Bailey. Samantha Yelland was her Solicitor and Edward Fenner her Junior Counsel.