DPP can't grant prosecution immunity
The Director of Public Prosecutions would be aiding a crime if she granted a request from a terminally ill woman to outline what factors would be considered when deciding whether to prosecute for assisted suicide, the DPP's lawyers have told the High Court.
The DPP was very concerned not to set out "a road map" under which a person may more safely commit a crime and avoid prosecution, Paul O'Higgins SC argued today.
Providing factors relevant to the DPP's prosecutorial discretion before a crime of assisted suicide occurs would amount to the DPP helping someone avoid prosecution or "quasi-legislating" when the DPP could do neither, he said.
It was "simply unacceptable in a modern democracy" for the DPP to grant immunity from prosecution.
While the DPP recognised the situation confronting Marie Fleming is "appalling" and it was reasonable for Ms Fleming to seek prosecutorial guidelines to avoid her partner Tom Curran being prosecuted should he assist her in taking her own life, what was being sought was outside the constitutional remit of the DPP.
He agreed the DPP has issued guidelines relating to prosecution of crime but said those were general and effectively indicated the more serious the crfime, the more likely a prosecution.
He agreed with Mr Justice Nicholas Kearns that Mr Curran could, before any contemplated offence of assisted suicide, write to the DPP outlining that certain safeguards as stipulated by the UK DPP and the Canadian courts for assisted suicide cases were complied with. Such a letter could be similar to "a will", the judge remarked.
The DPP could take such correspondence into account only after any crime was commiteed, Mr O'Higgins said.
He was making submissions in the continuing action by Ms Fleming (58), who is in the final stages of Multiple Sclerosis, for orders permitting her to be lawfully assisted to take her own life at a time of her choice and requiring the DPP set out what factors are taken into account in deciding whether to prosecute for assisted suicide.
Suicide is not illegal here but Section 2.2 of the Criminal Law Suicide Act 2003 provides an absolute ban on assisting suicide. Ms Fleming contends Section 2.2 breaches her rights to life, privacy, autonomy and equality under the Constitution and European Convention on Human Rights.
The case is being heard by a three judge High Court comprising the President of the High Court, Mr Justice Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.