Keir Starmer, QC, is the powerful lawyer and former student radical whom the Catholic bishops accuse of encouraging people to break the suicide laws.
‘I am not exceeding my authority’ The chief prosecutor tells Andrew M Brown that his guidelines on assisted suicide will not endanger lives
Keir Starmer, QC, is the powerful lawyer and former student radical whom the Catholic bishops accuse of encouraging people to break the suicide laws. The bishops have said that in his “interim policy” for prosecutors in cases of assisted suicide, Starmer, the Director of Public Prosecutions, is exceeding his powers and ignoring the “clear view that Parliament has expressed”. He doesn’t agree, as he made clear when I interviewed him at the headquarters of the Crown Prosecution Service, near St Paul’s Cathedral.
The bishops also argue, in their submission to the consultation on the draft proposals, that it’s a question of equality before the law: a sick or disabled person’s life should receive the same protection in law as anyone else does. They say the inclusion of certain categories of victim, such as disabled, as weighing against prosecution is “highly misleading” and “could encourage criminal behaviour”.
And it’s not only the Catholic bishops who are concerned. Lord Carlile of Berriew, the Liberal Democrat peer and supporter of the group Care Not Killing, said: “Parliament has firmly rejected assistance with suicide for terminally ill people. For the Crown Prosecution Service to take a more lenient view of such cases is perverse and, arguably, an infringement of Parliament’s authority. And, while it is conceivable that a spouse or close family member might assist a suicide out of compassion, the reality is that many cases of abuse, and especially elder abuse, occur within families. The notion that those closest to the deceased are necessarily ‘loved ones’ is fallacious.”
Starmer says he expected disagreement, and the advantage of having the consultation after the guidance has already been published is to provide “a focus for the discussion”. At the end of our interview he emphasises that he doesn’t want to pre-empt the end of the consultation period, or respond specifically to the Catholic bishops. “We encourage as many people as possible to respond,” he says.
He also felt that, since some of the people who were most interested in the subject were in the advanced stages of appalling illnesses, it wasn’t right to leave them without some clarity in a period during which they might die.
One thing to bear in mind is that Starmer’s room for manoeuvre is quite limited. It was the House of Lords that pushed him into identifying what factors were taken into account when deciding whether or not to prosecute. “I’d be in breach of a court order if I didn’t do it,” he explains. “I’d probably be in contempt of court. There’s absolutely no choice. There’s no way I can say, the House of Lords now having said ‘issue guidance’, I’m not prepared to do it. It’s got to be done, unless and until Parliament changes the law, there have got to be guidelines.”
He doesn’t sound overjoyed about the position the House of Lords has put him in. It’s hard to avoid the conclusion that he’d have just as soon carried on as things were, using his complete discretion, looking at each case as it came across his desk. “They said: ‘We need a bit more than that, we need to know the sort of factors that are taken into account.’ Now, once they’ve said that, I’m afraid the factors have to be identified.”
A common objection to his guidelines is that they stigmatise groups of people – the terminally ill, those with severe and incurable disability and those suffering severe degenerative physical conditions. Starmer responds that these are only factors to be taken into account. He reviewed the last five years’ cases and found that, as he says, “what goes with the terminal illness is the clear and settled intention to commit suicide, and you can’t ignore that”.
But it is only one factor. The guidelines, he insists, are intended to protect the vulnerable from pressures from others who may have something to gain through their suicide. But if comment comes in that that message isn’t clear enough, then he will think again. “There is no reason for anybody reading these interim guidelines to think that they are less protected than anybody else.”
In which case, as Lord Carlile points out, why make spouse or close family member a category where a prosecution is less likely? Aren’t spouses sometimes the last people one should rely on for good judgment in cases of assisted suicide?
“Well, I don’t think they are the last people you can rely on for good judgment. But what I do accept is that it cannot be guaranteed that because you are a spouse or close family member that your intention is necessarily good, and that is something we have to obviously to watch for.”
So if someone’s a spouse they will almost certainly not be prosecuted? “I’m not saying that. It’s a factor.”
The House of Lords had in mind the distressing Daniel James case and others when they asked Starmer, as head of the Crown Prosecution Service (CPS), to identify the factors taken into account when deciding how to apply the law.
James was the 23-year-old rugby player who dislocated his spine during a match and was paralysed from the chest down. His parents accompanied him to the Dignitas clinic in Switzerland where he committed suicide. Last December Starmer decided not to prosecute the parents, who had consistently tried to change their son’s mind, or a friend who had helped with arrangements. It was his first big judgment since taking over as DPP on November 1.
“One of the factors [was] that this was a mother in a deep loving relationship with her son who was acting out of pure compassion and in fact against her better judgment. She was pleading with him, even in the last days of Dignitas, not to do it. She certainly wasn’t going to leave him on his own and to that extent she assisted him. Now that compassionate loving mother/son relationship was a relevant fact and it might have been different if that had been someone who wasn’t his mother in that situation. Because everybody can understand why a mother in that situation might act in the way that she acted.”
The Daniel James case seems clear-cut and few people, least of all the Catholic bishops, think the parents should have been prosecuted. But what about the cases where it’s harder to discern true motives? Do Starmer’s guidelines “give the green light”, as Care Not Killing puts it, to relations who stand to gain from assisting a suicide?
His answer to this is simply that if there’s a hint of gain, the CPS will prosecute. For a relation to have a reduced risk of prosecution, they must be “wholly motivated by compassion”. And no one is exempt from prosecution: “We are not in the business of giving immunities to anybody, any individual or group of individuals.”
Each case must be investigated. “If the investigation suggests, as it did in the Daniel James case, a wholly compassionate, distraught mother, that is likely to fall one side of the line. If the investigation suggests not wholly motivated by compassion, something to gain – we haven’t even said personal gain, because we recognise there might be other gain – that swings the other way. We are making it absolutely clear that if you are out to gain then the presumption swings in favour of prosecution. We say ‘wholly motivated by compassion’ so you don’t just balance them – if there is an element of gain then a prosecution is likely. I mean I’d go that far. It’s not just a presumption. If there is an element of gain, a prosecution is likely even if you’re a close relative.”
Part of the problem for 47-year-old Keir Starmer may be that he’s thought of as a liberal and so people naturally assume that he privately supports a liberalisation of the law.
He keeps his views to himself and says merely: “I’m not of the Left or of the Right. I don’t have affiliations.”
Still, he was named after the socialist firebrand Keir Hardie, and he does come from a principled Left-wing background. He was the only one of four children to attend a grammar school, Reigate in Surrey. His friend Paul Vickers, now a BBC journalist, has recalled as a young man sharing a flat with Starmer in Highgate, north London. Vickers reflected on the long friendship in a recent Radio 4 profile of Starmer. Keir was one of the more important figures in the social whirl, according to Vickers, “a great party animal” who was keen on the music of Desmond Decker, especially “Israelites”.
“Keir’s politics,” Vickers goes on, “were hard Left and with that hard Left-ness came responsibility. So any decision that was made had to be made collectively. But of course Keir as the strongest personality in that collective usually got his own way. He used to run an organisation called Socialist Alternatives in our house. This was a group of equally committed Stalinists who produced a monthly magazine which was totally unreadable. It was dense political theory. So as a result we used to sit surrounded by boxes of thousands and thousands of unsold copies of Socialist Alternatives.”
More recently he built a reputation as a committed, even saintly, human rights specialist. His legal submissions on behalf of defendants sentenced to death in the Caribbean and in Africa have contributed to the abolition of the death penalty in many of those countries. And he spent 15 years helping the McLibel Two, unpaid, with their defence against McDonald’s, a workload he took on “without any sense of consolidating his personal reputation”, according to Heather Williams, a fellow barrister from his Doughty Street chambers. For recreation he follows Arsenal FC and plays every week.
His private opinions don’t come into it, he says. They have nothing to do with the discretion he has to exercise in cases of assisted suicide. “There is a 1961 statute. There is the Code of Crown Prosecutors. I have to act within that legal framework. The Human Rights Act is part of that framework, but only part of it. I don’t think in the Daniel James case, or in the Damian Green case [where he decided not to prosecute the shadow immigration minister over leaked Home Office documents] or in issuing the guidelines, anybody has suggested that I have acted anything other than in accordance with the law.”
The point about the DPP’s discretion is key, and he specifically does not accept the bishops’ charge that he has exceeded his remit and ignored the will of Parliament.
“And I’ll tell you for why,” he says, and there’s a two-second pause as he considers his words.
“Everybody who says Parliament has clearly expressed its view needs to be absolutely clear as to what that view is. Parliament passed the 1961 Act which criminalised assisted suicide but it also put within the same statute the requirement for the DPP’s consent. Now it did that for a reason: it did that because it recognised that not every case should be prosecuted to trial. It can’t be to exceed my authority to do what Parliament has required, which is to exercise my discretion and once the House of Lords has told me if I’m exercising my discretion I’ve got to produce the guidelines, I have got no option but to act lawfully. There’s no question of exceeding my authority.”
Starmer thinks his proposals offer protection for the vulnerable and that thorough investigation should uncover evidence that a person was acting under pressure from family. But what of the individual who feels under pressure to end his or her life even though no one is actually exerting any pressure? Can the law protect that sort of person?
“I simply have to approach each case as it arises, and if that case arises we’ll have to look at it. I certainly wouldn’t rule out that possible scenario. We’ll have to look at it as and when we get it. Certainly, nothing in the policy is intended to, nor should it, put people in a position where they feel under any sort of pressure to act in a way that they don’t otherwise want to act.”
Having listened to all this I think, yes, surely the House of Lords’ court order has made life more difficult for the DPP. Without the court order, would he have got to this stage?
With a wry smile, he says: “That would be to speculate. Our argument was [it would be] better to leave a broad discretion without identifying factors in a specific policy, but that was rejected. Whether, in the fullness of time, we might have begun to identify factors is impossible to say, but it was our argument that it was better to have the broad, un-factored discretion.”
And now he has been forced to state in which circumstances the law will not be enforced up to the point of trial, what is the point in having the law? First, any change in the law is up to Parliament, Starmer says. He hasn’t expressed a view. Moreover, the current law “is workable within the guidelines that we’ve issued”. This isn’t an area where the CPS has never prosecuted and the DPP’s discretion to prosecute or not has always been there. “All that’s new is the open articulation of the relevant factors,” he says. “Now it doesn’t follow from that that there is going to be a change in the pattern of cases prosecuted and cases not prosecuted and therefore the position that prosecutions are less likely is not made out. What I am clear about is that we will, to the extent that we are able to do so, explain our decisions to the public, so people can see how the discretion is being exercised.”
So he believes his procedures have the virtue of transparency. Catholics, and everyone else, can judge the CPS, and hold it to account.
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