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Leah Grolman and Greg Weeks: Guidelines and Assisted Suicide: an Australian Perspective

LeahgregThe morally and politically charged area of assisted suicide has many of the hallmarks of an insoluble problem. This has not prevented courts in some jurisdictions considering how they might ‘legalise’ assisted suicide without really legalising it. In doing so, they have raised manifold challenges in the minds of administrative and constitutional lawyers, including, in some jurisdictions, whether the prohibition on assisted suicide is itself constitutional, such as Rodriguez in Canada, Fleming in Ireland and Pretty in the ECtHR.

In Australia, assisted suicide is a topic which can be considered apart from constitutional considerations of the type which were determinative in Fleming. It can also be discussed, in general, in isolation from the human rights provisions which were determinative in Purdy. As is notorious, Australia has no statutory or constitutional protection of specific human rights at Commonwealth level or in most States. We propose to look at the issues which have arisen in other jurisdictions as though they took place in Australia, specifically in the State of New South Wales. We think that this will assist to isolate some of the substantive issues in relation to prosecuting persons who breach criminal legislation by aiding or abetting another person to commit suicide.

Of particular interest, as has been raised previously by contributors to this blog and elsewhere, is the potential of prosecutorial guidelines. While much has already been said about the way the Irish High Court has departed from the House of Lords decision in Purdy and failed to embrace the Canadian Ménard Report, how this might play out in Australian jurisdictions might provide a worthwhile addition to the conversation. Specifically, such an analysis may shed some light on how the issues around assisted suicide play out in the absence of either legislatively protected human rights or considerations of whether the prohibition itself is constitutional.

As in other jurisdictions, assisted suicide is a criminal offence in all Australian jurisdictions. The relevant provision in New South Wales, for example, is section 31C of the Crimes Act 1900. It is also a federal offence to use a ‘carriage service’ for suicide related material or possess, control, produce, supply or obtain suicide related material for use through a carriage service: Criminal Code Act 1995 (Cth). This is despite the growing public acceptance of the idea of legalising ‘voluntary life-ending behaviours’ and the short-lived legalisation by the Northern Territory which legalised assisted suicide.

A person found guilty of committing the crime of assisting another person to commit suicide is liable to serve a period of imprisonment of 10 years. Also in common with other jurisdictions, NSW has long since decriminalised both suicide and attempted suicide. The crime of aiding or abetting a person to commit suicide is therefore a crime of primary, rather than accessorial, liability. As in the UK, the decision as to whether a person will be prosecuted for this offence is within the discretion of the Director of Public Prosecutions (DPP).

The DPP in NSW has a statutory power under section 13 of the Director of Public Prosecutions Act 1986 to issue prosecutorial guidelines, and has done so. However, there are restrictions on the purposes for which such guidelines can be issued:

  • They are issued for the benefit of prosecutors in making discretionary decisions, such as exercising the discretion whether to commence a prosecution. Although they are published, they are not issued for the benefit of people who are seeking to order their behaviour such that it does not attract criminal liability.
  • They are not specific to any single offence but are designed to relate to offences generally, or to particular areas of law in which sensitive decisions are required, such as child protection (Appendix F) and domestic violence (Appendix E).
  • There is long-standing High Court authority that indemnity cannot be given for a breach of the law prior to the commission of the offence in respect of which indemnity is sought. Even after the commission of an offence, the granting of immunity from criminal liability lies, conventionally in Australia, with the Attorney-General.

Additionally, there is a strong tradition of courts declining to interfere in the exercise of prosecutorial discretion by the DPP, other than where there is an abuse of the court’s process. Even in that circumstance, the prosecution is terminated without resort to judicial review. This tradition harks back to the days where prosecutorial decisions were viewed as part of the Crown prerogative and, therefore, unreviewable. The High Court has confirmed, however, that even though prosecutorial discretion is today based in statute in all Australian jurisdictions, it still remains beyond the reach of judicial review. That this remains the case is crucial to maintaining the separation of executive power (prosecutorial decisions) and judicial power (hearing and determining criminal proceedings). In Australia, this separation has a ‘constitutional dimension’: the ‘separation of powers’ doctrine entrenched in the Constitution – a feature of the Australian system of government which operates distinctly from the similar doctrine in the UK.

The separation of judicial and executive power has significant ramifications with respect to the prospect of a court ordering the DPP to issue guidelines in any context, let alone for the offence of assisted suicide whose treatment involves considerations which are more political than legal. First, Australian courts would not, as a matter of their long-established practice of non-interference with DPP decisions, order a DPP to issue guidelines like the House of Lords in Purdy.

The second significant ramification relates to the potential legal effect of guidelines issued by an Australian DPP. UK administrative law has adopted a doctrine of substantive legitimate expectations, as illustrated by Coughlan. Miss Coughlan was transferred to North and East Devon Heath Authority in disappointment of her expectation, induced by a promise made by the NHS, that her and other patients would remain at Mardon House (where they were previously) for as long as they chose. The Court of Appeal remedied the unfairness to Miss Coughlan, not procedurally as an Australian Court would have done, but substantively by enforcing her expectation that Mardon House would be her home for life.

In contrast, as one of the authors has explained elsewhere, no specific doctrine of public law estoppel has developed in Australia. This is despite the apparent potential of the equitable doctrine of estoppel to remedy the lacuna exposed by situations where a public authority deviates from the terms of a non-statutory instrument (eg, guidelines) or representation (eg, a statement of policy) to the detriment of an individual. Therefore, Australians would unlikely be able to hold the DPP to any guidelines issued via the doctrine of legitimate expectations or by raising estoppel.

Guidelines may also be precluded from being issued by the rule that a public authority cannot be bound by something that prevents the exercise of one of its statutory duties or discretions of a public character (the ‘rule against fettering’). This is, of course, assuming that the guidelines amounted, in effect, to an undertaking by the DPP not to prosecute, as Kearns P reasoned in Fleming:

Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’ …

Moreover, the High Court has made clear that any ‘agreement’, such as a ‘plea agreement’, between the prosecution and the defence ‘does not bind the judge … It is for the judge, assisted by the submissions of counsel, to decide and apply the law.’ So, even if a person intending to offend, or having offended, persuades the prosecution to agree to prosecute but to argue for, say, a nominal penalty because of the altruistic motives of the person assisting the deceased to commit suicide, this does not guarantee that a nominal sentence will fall from the bench.

But what about areas where prosecuting bodies other than the DPP make ‘rulings’ (the Australian Taxation Office) or issue ‘no-action letters’ (the Australian Securities and Investments Commission)? Surely, these are exceptions to the principle that indemnity for criminal liability will not be forthcoming prior to an offence being committed. Not so. If an individual were to rely on this as an undertaking by the relevant prosecuting authority, go ahead with the offending behaviour in respect of which they sought an undertaking, and then argue that the prosecuting authority is estopped from prosecuting, the court would find the individual’s reliance ‘unreasonable’. As highlighted by the Full Federal Court in Bellinz, ATO rulings state that they are subject to legislation and appellate rulings; the ATO could not be estopped from making a decision either required or allowed by the relevant legislation. A similar situation prevails in Britain. Likewise, Regulatory Guideline 108 cl 16 makes clear that no-action letters do not restrict ASIC’s right to take action, even where such a letter has been issued.

We agree with Paul Daly’s statement that guidelines are a form of “law”, albeit with important differences from forms of law grounded in judicial or legislative expression.  Nonetheless, it is more difficult for an Australian lawyer to find resonance with any characterisation of guidelines, particularly relating to a topic like assisted suicide, which gives primacy to a concept as loose as “the popular will”. There are different ways of approaching the question of administrative discretion. American scholars, such as K C Davis, and judges have expressed distrust of important discretionary decisions being left unconfined in the hands of “unelected bureaucrats”. An Australian might just as easily laud such a circumstance on the basis that a sensitive decision has been left in the hands of an apolitical public servant, such as a DPP. There is no culture in Australia of such officers being elected, nor of them abusing their power. The DPP holds a broad discretion with regard to prosecuting those who assist another person to die precisely because the matter is both highly sensitive and extremely difficult to define legislatively with the precision required of a criminal act.

Leah Grolman final-year LLB student at the University of New South Wales and Sir Anthony Mason Intern at the Gilbert and Tobin Centre of Public Law, Faculty of Law, University of New South Wales

Greg Weeks is a Lecturer in Law at the University of New South Wales

 

Suggested citation: L. Grolman and G. Weeks, ‘Guidelines and Assisted Suicide: an Australian Perspective’   UK Const. L. Blog (7th August 2013) (available at http://ukconstitutionallaw.org)

 

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Richard Ekins: Defying the law: a reply to Daly

RichardEkins_profileI’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report.  However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.

Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’?  That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)?  Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’.  But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive.  No need then to wriggle out, for the decision should instead just be flatly rejected.

The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide.  The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2).  Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question.  As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.

However, there was never any lack of clarity in the law governing assisted suicide.  Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide).  Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification.  Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought.  The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution.  Thus, Purdy privileges a very odd conception of the law-abiding person.  In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her.  That is, citizens should do what the law says they should, rather than estimate their chances.

The legal duty was always entirely clear: do not assist suicide.  In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law.  John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in [2010] New Zealand Law Review 601.

Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all.  They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide.  It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge.  The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines.  Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law.  And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.

What of the Ménard Report?  As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers.  I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling.  The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law.  It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law).  The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’  However, the people of Quebec are not entitled to permit assisted suicide.  The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.

The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)

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Paul Daly: Death, Democracy and Delegation

paul_daly_web

Decisions on when to end one’s life are unquestionably of the greatest intimacy. Yet there is a clear public interest in ensuring that these decisions are carefully regulated to ensure the safety of the vulnerable. Accordingly, quite what legal framework should govern end-of-life-decisions — if, indeed, there should be any framework at all — is a contested question.

Recent developments in Ireland and the Canadian province of Québec offer a new angle on the question. An interesting contrast can be perceived between the decision taken by the Irish High Court in Fleming v. Ireland, [2013] IEHC 2, and the “Ménard report” commissioned by Québec’s Parliament. In Fleming, the High Court dismissed as undemocratic guidelines which would structure the discretionary power to prosecute. Whereas the Ménard report concluded that prosecutorial guidelines would be the only way to give effect to the Québec Parliament’s desire to legalize assisted suicide within defined parameters.

In Fleming, the High Court, and subsequently the Supreme Court ([2013] IESC 19), upheld the provisions of the Criminal Law (Suicide) Act, 1993 against constitutional challenge. One aspect of the case — which was not appealed to the Supreme Court — was whether the Director of Public Prosecutions could be obliged to issue guidelines explaining the factors to be taken into consideration in deciding whether or not to prosecute the offence of assisted suicide.

As I have explained elsewhere, the High Court did not follow the decision of the House of Lords in Purdy v. Director of Public Prosecutions, 2009 UKHL 45. There, the House of Lords addressed a materially identical prohibition on assisted suicide which left discretion to prosecute in the hands of the Director of Public Prosecutions. The failure to set out in published guidelines the considerations which would be weighed in the balance in deciding whether or not to prosecute was held to violate the legality principle of the European Convention on Human Rights: the necessary foreseeability and accessibility were lacking. Significant contortions were required for the High Court to twist away from Purdy and towards its ultimate (quite odd) conclusion that the Director of Public Prosecutions has no power at all to issue guidelines (a fact which doubtless came as a shock to the Director of Public Prosecutions, who issued a set of general guidelines several years ago).

More remarkable still was another conclusion: that it would be undemocratic for the Director of Public Prosecutions to issue guidelines. This conclusion rested on Article 15.2 of the Irish Constitution. As judicially interpreted, this provision has functioned as a “non-delegation” clause. Sweeping grants of discretion to administrative decision-makers are unconstitutional. Principles and policies must be specified in the governing legislation. In the High Court’s view, requiring the Director of Public Prosecutions to issue guidelines would violate the democratic principle of Article 15.2:

It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…

This conclusion is implausible. The High Court was presented with two options: maintain the status quo, or order guidelines. The status quo involves essentially unreviewable decisions taken behind closed doors in the office of the Director of Public Prosecutions. As a rule, reasons are not given (although a pilot project has been mooted).

Guidelines would involve (possibly) public consultation and (certainly) release to the public of the factors considered relevant in deciding to prosecute. The publication of guidelines could foment public debate. If public opinion were to pitch decisively one way or another, the Irish Parliament could always intervene to more carefully delineate the Director of Public Prosecutions’ discretion. It is very difficult to see how the status quo is more democratic than a world with guidelines. And this is quite apart from the benefits to affected individuals of increased foreseeability and accessibility.

Indeed, the High Court recognized that the Director of Public Prosecutions was bound to take some factors into account in exercising prosecutorial discretion. It suggested that the U.K. guidelines should be taken into account, as well as factors laid out by a Canadian judge. But it did not explain how taking into consideration guidelines developed in another jurisdiction and factors identified by a foreign judge would be more democratic than ordering the Director of Public Prosecutions to issue guidelines.

Of course, this was probably just about as much as the plaintiff could hope for, in the absence of an order striking down the Act altogether. Not appealing was probably prudent, even though the High Court’s reasoning was questionable.

The contrast with the Ménard report is stark. Québec operates in a different legal environment. In Canada, criminal law is the domain of the federal government and s. 241 of the Criminal Code prohibits assisted suicide. This prohibition was (narrowly) upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, it was struck down by a British Columbia trial court (Carter v. Canada (Attorney General), 2012 BCSC 886), a decision which is under appeal and is likely to wend its way to the Supreme Court of Canada. This process could take some time, however, and the ultimate outcome is uncertain.

In the meantime, Québec is anxious to find some means of giving effect to a policy of permitting assisted suicide, within carefully defined parameters. The process that culminated in the Ménard report began in 2009. A special commission was struck and set about sounding public opinion. Its recommendations were adopted unanimously by the Québec Parliament in 2012. Subsequently, the three authors of the Ménard report were tasked with providing a legal framework in which the recommendations could be implemented.

The path taken in the Ménard report is interesting, though unlikely to survive constitutional challenge.

In the division of powers set out in Canada’s Constitution Act, 1867, criminal law falls in the domain of the federal government, but health care is indisputably a provincial concern. Accordingly, Québec could certainly pass legislation regulating end-of-life care. But in doing so, it could not impede federal criminal prohibitions. Legislation legalizing, or seeking to legalize, assisted suicide would be plainly unconstitutional.

The ingenious suggestion in the Ménard report is to capitalize on the provincial power over “administration of justice”. Although criminal offences in Canada are set out in the federal Criminal Code, provincial attorneys general are responsible for prosecution. Prosecutorial discretion is, moreover, reviewable only in very limited circumstances.

Accordingly, the Ménard report suggests (albeit without being clear on the precise means of implementation) that Québec could introduce guidelines cabining prosecutorial discretion. These would not be binding and thus would not displace the federal prohibition on assisted suicide. They would seek to regulate provincial discretion, not to undermine federal law. Something similar to the U.K. guidelines is envisaged.

The contrast with the Irish position is stark. Where the Irish High Court rejected guidelines as undemocratic, in Québec, guidelines are proposed as the only means to give effect to the desire of the population to permit assisted suicide.

That is not necessarily to say that the approach taken in the Ménard report will be successful. The precise means of implementation are left unclear by the authors, but would have to be carefully calibrated. The slightest misstep would take Québec into the exclusively federal territory of criminal law. Moreover, given the generous Canadian approach to standing, the courts are unlikely to be impressed by an argument based on the unreviewability of prosecutorial discretion. A general challenge to the existence of such guidelines, on the basis that the provincial attorney general simply had no authority to issue them, would probably receive a sympathetic hearing.

Any Québec attempt to liberalize the rules on assisted suicide is likely to run into significant constitutional difficulties. In Canada, federal law is paramount over provincial law.  Provincial laws (or actions) which frustrate the purpose of federal laws are inoperative. And of course, the very purpose of the provisions — binding or not — envisaged by the Ménard report is to frustrate the operation of the federal prohibition on assisted suicide.

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable (from a democratic point of view) to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Death, Democracy and Delegation’  U.K. Const. L. Blog (14th May 2013) (available at http://ukconstitutionallaw.org).

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Nick Barber: The Decline of Mercy

Many years ago, I was invited to speak on the radio about the obligation to obey the law.  One comment made a lasting impression on me.  In the course of a wide-ranging, and fickle, survey of the law’s relationship with morality, the judge in our group declared that one of the great things about the British judiciary was that they were merciful: judges tempered their rulings with mercy.  I’m sure that most people listening thought this was a good thing, but I needed to reflect – and, when I reflect, I like to stare silently out of the nearest window for a time. This didn’t go over well on the radio.  I haven’t been asked back.

I was, and am, unsure what role mercy should play the constitution and, moreover, which institutions should exhibit this virtue.  A person acts in a merciful way when she has been wronged, is entitled to punish the wrongdoer, but chooses not to; she sets aside her entitlement. The beneficiary of mercy is not always forgiven – the slate has not been wiped clean – but she escapes the full punishment due to her.  Mercy is an interesting social virtue.  The beneficiary can hope for mercy, but cannot demand it as of right: having been treated mercifully, she should be grateful to the person she wronged.   However, we generally hope – perhaps even expect – that people will exhibit this virtue.  All of us behave badly occasionally, and mercy helps social relationships to continue despite these failings.  A person without mercy would be a poor community member; she would damage the community by holding rigidly to her entitlements and souring relationships.

These two aspects of mercy – that people ought to act mercifully, but, at the same time, those hoping for mercy cannot demand this  – make it a difficult virtue to exercise in the constitutional sphere.  A merciful state actor would waive the punishment due to a person, even though the wrongdoer could not assert an entitlement not to be punished.  This was why the judge’s comments surprised me. The task of the judge is to determine legal rights and uphold them.  A judge who conclude a civil case by deciding that one party was legally entitle to a sum, but that she, as an act of mercy, would waive that entitlement would be acting improperly.  Similarly, for a judge to decide that the criminal law required imprisonment, but, as an act of mercy, the criminal could walk free, would seem odd.  Such mercy is not in the judge’s gift; she is not the one who has been offended against.

One response to this conundrum would be to re-interpret mercy.  In a valuable paper, John Tasioulas ((2003) 103 Proceedings of the Aristotelian Society 101) provides an account of mercy that draws it closer to justice.  Tasioulas utilises the distinction between retributive justice – that is, the punishment merited by the offender’s crime – and factors relating to the offender’s character that may warrant a reduction in the appropriate penalty.  So, for example, where the offender has had an impoverished background, or suffers some illness that will be exacerbated by imprisonment, mercy may require a punishment that is milder than that required by the offender’s action: retributive justice may require that an habitual burglar be imprisoned for a year, but when the court discovers she only has six months to live, mercy demands a lesser penalty.  Tasioulas’ paper is insightful, but departs from our notion of mercy in the personal context in at least two respects.  First, the sense of mercy as an act of grace, a holding back of the punishment that is merited by the act, has been lost.  Now mercy looks very much like a subset of reasons contained within a wider understanding of justice.  The considerations that Tasioulas ties to mercy determine the appropriate punishment deserved by the offender: as well as looking at the offence, justice requires that we consider how a person came to commit the crime and, also, how any potential penalty will impact on her life.   Allied to this concern, Tasioulas’ understanding of mercy appears to capture the sort of factors relating to sentencing that an offender is entitled to have taken into consideration; the offender has a right to mercy, in this sense.  Tasioulas struggles to avoid this conclusion – once we start to think of mercy as grounding rights, it quickly collapses into justice – but his claim that an offender who has not benefited from mercy has suffered bad luck rather than a wrong is not entirely convincing.  We expect judges to impose the punishment that the case demands, not to set the punishment on the basis of their (the judges’) idiosyncrasies.

It might be that Tasioulas’ interpretation of mercy is the only one compatible with our modern understanding of the role of the state.  But until quite recently an alternative conception of mercy could be seen in the British constitution – though we need to look outside of the courts to identify it.

In the past, the British constitution contained a number of executive powers linked to mercy.  These powers closely resembled the virtue as it is found in personal relationships: an act of grace that the offender could hope for, but could not demand.  Perhaps the two most important instances of this virtue were the capacity of the executive to allow convicts to leave prison early and the power to suspend the prosecution of the plainly guilty.  The divide between mercy and justice, in the exercise of these powers, mapped on to an institutional divide between the executive and the judiciary.  The executive exercised mercy on behalf of the community, the entity against which the criminal had offended. The judges, in contrast, decided on entitlements; the price that the criminal had to pay to satisfy the demands of justice.  The executive tempered the demands of justice with mercy, allowing the criminal to escape the full consequences of her crime.

Or at least this was the case until recently: mercy has fallen out of fashion.  First, in the areas of sentencing, the role of Ministers has been steadily reduced.  When the parole system was introduced, the Home Secretary could veto the Parole Board’s recommendations to release prisoners; the Board was advisory, rather than decision-making.  Similarly, when the tariff system was introduced for life prisoners in 1983, it was the Home Secretary who set the minimum term.  Each of these powers has faced attacks from the European Court of Human Rights and, after the Human Rights Act, from the British judiciary, too.  The power of the Home Secretary to veto the release of prisoners was found to be contrary to the European Convention on Human Rights in Stafford (2002), and in Anderson (2002) the Lords found that the power of the Minister to set the tariff for life prisoners was incompatible with the Human Rights Act.  The Criminal Justice Act 2003 followed, and now the trial judge sets the minimum tariff, and the Parole Board decides on release.

The nature of the Parole Board has also changed.  For a long time, the Parole Board was criticised for its secrecy and lack of transparency.  Prisoners were not accorded a hearing, could not challenge the evidence, and no reasons were provided by the Board: it behaved like an emanation of the executive branch.  Looking at the Parole Board’s website today, it is plain that it has come to resemble – is keen to be seen to resemble – a court.  Criteria by which decisions are made are published.  Prisoners have the opportunity to attend a hearing, can, in most cases, challenge evidence, and reasons are given for decisions.  The hopes of a prisoner approaching the Board have been replaced by a collection of rights and entitlements.

Secondly, decisions relating to prosecution have also been judicialised.  The case of Purdy (2009) concerned the guidance applied by the Director of Public Prosecution to decisions over the prosecution of cases of assisted suicide. Often, the DPP had decided not to prosecute: the offender was spared the punishment the law regarded as her due.  The Lords decided that the published prosecutorial guidance was too vague to satisfy Article 8 of the ECHR, the right to private life.  The restriction on Purdy’s ability to secure an assisted suicide could, potentially, be justified under Article 8(2), the exceptions to that right, but only if the restriction was undertaken in accordance with law – and guidance was too vague to meet this requirement.  The upshot was that the DPP was compelled to rewrite the guidance, clarifying it to enable the risk of prosecution to be predicted.  What had once been a matter of mercy – a hope to escape prosecution – was now bordering on a matter of right – an entitlement not to be prosecuted.  As John Finnis has powerfully argued, the House of Lords changed the law in Purdy, creating the unusual situation that some aspirant criminals can ask the prosecuting authorities whether they will escape prosecution for an offence they are considering committing.  I don’t agree with Finnis over the rights and wrongs of euthanasia, but I do agree with him that Purdy is a case in which the Lords ventured into the domain of Parliament by changing the law in a controversial area – and, moreover, this trespass was caused by a failure to appreciate the constitutional virtue of mercy.

What are we to make of these changes?  It is clear that the constitutional virtue of mercy is in steep decline, and, perhaps, is allied to the rise of a more compassionate sense of what justice requires.  We are no longer willing to allow the state to waive the punishment of those whom, the judges have decided, deserve a penalty.  And – it  seems – we are no longer comfortable with the notion that the constitution could give a person a hope of avoiding, but not an entitlement to avoid, state punishment.  There are certainly good reasons for being suspicious of mercy in the constitutional sphere: there is a risk of bias and caprice.  But, on the other hand, mercy allowed the state to rise above rules and exhibit compassion in a particular case, speaking directly to a wrongdoer: perhaps something is lost when this capacity is set aside.

 

Nick Barber is a Fellow at Trinity College, Oxford, and the author of The Constitutional State.

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