DPP can't grant prosecution immunity
Earlier, in reply to Mr Justice Kearns, the Irish Human Rights Commission said it considers a person has a right, flowing from their personal autonomy rights, to take their own life in defined and extreme circumstances.
Frank Callanan SC, for the Commission, said he wanted to avoid using the term "right to die" as that was "emotive and not entirely accurate".
He agreed with Mr Justice Hogan another way of looking at Ms Fleming's case was whether the State, in criminalising assisted suicide, could compel a person to live on and endure a "horrible and unimaginable death" that in other circumstances would amount to torture.
In detailed submissions, the Commission has asked the court to consider if the criminalisation in absolute terms of assisted suicide here is justified given its impact on severely disabled and terminally ill people who may wish to take their own lives but cannot.
The court must decide whether such absolute criminalisation was justified having regard to the interference with the personal rights of Ms Fleming, including to equality and privacy, it said. The court had to examine the purpose of Section 2.2 and consider whether that purpose could be achieved in other and less absolute terms.
Shane Murphy SC, for the State, said a person who fears they may be prosecuted for an offence may lawfully communicate with the DPP, who must take that communication into consideration. The DPP must take into account all factors in deciding whether to prosecute an offence but could only do so after commission of that offence, he said.
The DPP may issue guidelines relating to matters to be taken into account in exercising her discretion on prosecution but that was a matter for the DPP herself, counsel stressed.
Replying, Ronan Murphy SC, for Ms Fleming, said the DPP has specific discretion concerning assisted suicide offences and no statutory authority prevented her issuing guidelines. The indication the DPP would consider any letter stating assisted suicide safeguards were complied with did not go far enough as Ms Fleming would still not know if the DPP would consider the public interest would be taken into account so as to mitigate the risk of prosecution for assisted suicide.
Ms Fleming wanted clear guidelines specific to the offence of assisted suicide or types of assisted suicide, counsel said. They were not seeking a letter of comfort or guarantee of immunity from prosecution, he added.
The case resumes on Tuesday.