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T-illegal actions and the case for legal ambiguity

Question: When is a crime not a crime? Answer: when it will never be prosecuted.

The release this week by the Director of Public Prosecutions of his interim policy on prosecution of assisted suicide raises a number of questions – as discussed yesterday in this blog by Simon Rippon. The new policy formalises what has been informal for some time, that family members of patients with terminal illnesses (or other serious conditions) who help the patients to travel overseas to access assisted suicide are unlikely to be prosecuted for their actions. But their actions will still be technically criminal. Should there be a class of ambiguous actions that are neither legal, nor illegal?

“Technically Illegal” (T-illegal) actions can arise for a number of reasons. Sometimes crimes remain on the statute books for centuries without being repealed, simply through neglect. (In the UK whales and sturgeon still officially belong to the monarch, and it is an offence to hang a washing line in the street). But there are other actions that are deliberately kept illegal even though prosecution is never performed. This category of actions includes in particular those associated with a high degree of controversy and divided community opinion. For example, until very recently, abortion remained a criminal offence in the Australian state of Victoria, though it was widely available to women who requested it. Some of those who believe that there are occasions when it is morally permissible and appropriate for a doctor to actively end the life of a patient, nevertheless argue that it should remain T-illegal for the doctor to do so. (This remains the status of euthanasia in the Netherlands for example).

There are two types of argument for legal ambiguity in this class of actions. The first argument is that the consequences of legalisation are worse than continued ambiguity. Even though such actions are morally acceptable, it is better for them to remain T-illegal. Perhaps the fact that such actions could be prosecuted provides a strong disincentive such that they will only be performed in extreme situations. Alternatively, slippery slope arguments might be proposed, along the lines that if such actions were legally condoned this would inexorably and inevitably lead to other (non-permissible) actions being performed or other laws being passed. (The obvious counter-argument to this position is that clear guidelines or laws may be more likely to prevent abuse than a situation where actions are routinely concealed and obfuscated out of fear of prosecution.) Finally, the difficulty of drafting legislation around complex issues such as end-of-life care is sometimes cited. It may be better that the Director of Public prosecutions is allowed to exercise discretion in deciding individual cases rather than trying to codify all possible eventualities.

The second argument for legal ambiguity is political. Actions such as assisted suicide, euthanasia or abortion are highly divisive. There are strong opinions on both sides of the debate. Full legalisation may be politically costly, whereas the alternative of legal ambiguity may allow politicians to provide a compromise that partly satisfies both supporters and opponents of the T-illegal action.

So should assisted suicide remain T-illegal? The new policy does not legalise assisted suicide, it merely clarifies rules for prosecution. It reduces part of the ambiguity of such actions while keeping their status unchanged. There is a case for legal ambiguity in such actions, as outlined above. But it is awkward and, to some degree, hypocritical for actions to be kept in a state of limbo indefinitely. T-illegal status tends to be a transition zone between actual illegality and legalisation. Most such actions are eventually legalised. That is the real reason why opponents of assisted suicide are frustrated by the actions of the DPP this week.

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4 Comment on this post

  1. Dennis

    the nature of T-illegal actions is that they could be prosecuted – if the prosecutor chose, but a convention has arisen wherein he/she never does – at least if certain criteria are met. The feature of the Purdy case was that the Law Lords agreed with Purdy that the failure of the prosecutor to clarify when he would prosecute was in breach of the Human Rights Act. He has thus been forced to make less ambiguous assisted suicide.
    But the DPP can’t change the law, so his new policy states that assisted suicide remains Technically illegal in the UK, it is just that prosecution will not occur. The ambiguous status of this sort of action gives a lot of power to the prosecutor – that is one potential concern with them


  2. Then the law is a lie. If the applicable statute states that it will not be enforced, it is a nullity and has no effect on public morals. Assisted suicide can go on even if the prosecutor thinks that this one smells like murder. So, to make such a statute effective in generally allowing, but nevertheless constraining formal assisted suicides, you need prosecutorial discretion.

    So, when and bhow it is applied depends on the prosecutor’s discretion. A convention that regulates the prosecutor is not positive law, and one wonders whether that convention can be clear enough at the margins to prevent it from being nibbled away by prosecutorial discretion.

    A problem like this was solved in the famous canibalism on the high seas case, in which one of the judges said that the defense of necessity is inadmissible but the discretion of the home secretary should take care of the hard cases.

  3. Dennis,

    quote “Then the law is a lie.”

    That is certainly one of the objections to legal ambiguity, and, as you point out, if assisted suicide is never prosecuted then the ‘disincentive’ argument for T-illegality dissipates. (That may be one reason why over time it becomes pointless to maintain the fiction that such acts are actually against the law).

    The other way of thinking about it is that T-illegality creates a default position – what a legal friend of mine would call a ‘rebuttable presumption’. The presumption is that assisted suicide is a crime, but that if certain conditions are met this presumption may be rebutted. It is not quite guilty until proven innocent, but if you like it sets the burden of proof on the agent to demonstrate (or at least be able to demonstrate) that the criteria have been met.

    quote “the discretion of the home secretary should take care of the hard cases.”

    this is linked to the idea that hard cases make bad law, and that correspondingly they are best dealt with in a pragmatic way in particular cases, rather than by statutory change.


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