The current advice says that, where there is enough evidence, “a prosecution is almost certainly required, even in cases such as the ‘mercy killing’ of a sick relative”.
This will be replaced with a House of Lords judgment that states it has never been the rule that “a prosecution will automatically follow even where there is enough evidence to bring charges”.
‘Public interest’ test
Accepting that there could be “wholly compassionate” motivations, the new guidance sets out six “public interest” factors that would make a prosecution less likely, including that the victim was “seriously physically unwell and unable” to kill themselves.
Others would include the victim reaching a voluntary, clear, settled and informed decision to end their life, the suspect attempted to take their own life as part of a suicide pact and that the suspect’s actions could be characterised as reluctant.
There are 11 factors that prosecutors will be expected to consider that would make charging the suspect more likely, including the victim being under 16 or the victim lacking the mental capacity to make an informed decision to end their life.
Other factors militating in favour of prosecution include the suspect having a history of violence or abuse against the victim, receiving a financial reward or having a duty of care such as being a doctor or nurse.
“There are circumstances where actually, even where you have the evidence, you may be able to move away from prosecution,” said Max Hill, the Director of Public Prosecutions.
“It means that in some cases charges will be brought, but in others we will be able to avoid placing a loving husband or a loving wife in court to face criminal charges.”
The CPS has previously been criticised for prosecuting mercy killings. In one case, a judge attacked the CPS for pursuing a case of attempted murder against Kay Gilderdale, who helped her seriously ill daughter Lynn die.
Ms Gilderdale administered a cocktail of lethal drugs to end Lynn’s life in December 2008 after her daughter called her for help when attempting to take her own life.