Prospective Immunity for Assisting a Suicide? Excuses, Justifications, and Real Politics

Abstract

This paper provides an evaluation of Roger Brownsword, Penney Lewis, and Genevra Richardson's proposed assisted-dying policy, which would give assisters a prospective immunity from prosecution whilst not decriminalising any forms of assisted-suicide or killing. It is argued that the question of non-decriminalisation is what distinguishes the policy, and thus that its value and feasibility are to be tested by the strength of this distinction. Although an appeal to retention of the criminal law's status quo suggests neutrality, under scrutiny it emerges that the claim only holds if a substantive, and thus necessarily controversial, evaluative position is accepted. The existing criminal law framework formally condemns all assisted-suicide, whilst accepting that in some instances an assister might be excused. The new system, it is argued, relies on a move from a system reliant on excuse to one based on the justifiability of some assisted-suicides. As such, it is argued that the status quo would change. While it is agreed that the proposal may be legally and conceptually coherent, it is therefore concluded that the policy's feasibility, at least in the current political climate, is to be doubted