Kenward & Anor, R (On the Application Of) v The Director of Public Prosecutions & Anor

A prosecution policy concerning encouraging or assisting suicide may lawfully identify public-interest factors without decriminalising conduct. The assessment is multifactorial and cannot be reduced to counting factors. The policy’s content is principally a matter for the Director of Public Prosecutions, provided it is sufficiently accessible and foreseeable. A clarification of an existing policy does not necessarily require fresh consultation. The Attorney General’s statutory superintendence of the Director does not create an actionable duty owed to individual claimants.

The claimants sought judicial review of an October 2014 amendment to the Director of Public Prosecutions’ policy on cases of encouraging or assisting suicide. The amendment clarified that the factor favouring prosecution where the suspect was a healthcare professional or person in authority applied only where the victim was in that person’s care and there was a relationship capable of involving influence.

The claimants argued that the amendment unlawfully changed, rather than clarified, the policy; that further consultation was required; and that the Director and Attorney General had breached statutory and protocol-based duties. The central issues were the effect of the earlier litigation in Nicklinson and whether the amendment was lawful.

1. The application for judicial review was dismissed. The October 2014 amendment was a clarification of the policy the DPP intended to promulgate. It did not make previously unlawful assistance lawful, remove the offence, or provide immunity from prosecution.

2. The policy requires a multifactorial public-interest assessment. Prosecutors must consider each case on its facts and merits, assess the importance of each factor, and make an overall judgment. Factors are not to be counted mechanically, and one factor may outweigh several factors pointing in the opposite direction.

3. The Supreme Court’s decision in R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM (AP)) v DPP did not definitively determine the meaning of paragraph 43.14. It identified uncertainty and left the DPP to review and, if appropriate, clarify or reformulate the policy. The content of the policy remained a matter for the DPP rather than the court.

4. There was no legal obligation to conduct a further consultation before issuing the amendment. The earlier consultation had been full and open-textured, and the DPP had already indicated to the Supreme Court that the clarified formulation represented her understanding of the policy. The observations in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and Others did not support a duty to consult in these circumstances.

5. Section 3(1) of the Prosecution of Offences Act 1985 placed the DPP’s functions under the Attorney General’s superintendence. It did not create an actionable legal duty owed to an individual dissatisfied with prosecutorial policy. The Attorney General had been informed of the amendment as required by the protocol, and had no duty to prevent it.

6. The policy did not affect the separate standards that professional regulators might impose on healthcare professionals and carers.