Written by: Andrew Jefferies QC
Anyone who kills another, often a loved one, out of an act of mercy, faces being prosecuted and convicted as a murderer and sentenced as such. Recent guidance has been issued by the DPP in respect of whether to charge an individual in cases of assisting suicide. That guidance makes plain that it does not apply to cases of murder, i.e. deliberate killing. Once the matter goes to court, there is no special plea or offence of mercy killing. The charge will be murder. Under our current law, if convicted of murder in these circumstances there is but one sentence: life imprisonment.
The only significance of the killing being an act of mercy comes when the sentencing judge decides how long the ‘murderer’ should serve in prison before the parole board consider whether the person is fit for release (‘the minimum term’). An Act (The Criminal Justice Act 2003, Schedule 21) specifically provides that a sentencing Judge must have regard to the fact that the defendant ‘believed the murder was an act of mercy’ when deciding how long the minimum term to be served is as a mitigating feature. However, other guidance in the same Act advises judges to consider whether the killing was done with an intention to kill (rather than only cause really serious harm), whether there was planning and whether there was a position of trust, as aggravating features. All of these factors are likely to be present in cases of mercy killing.
Applying common sense, Lord Judge CJ recently confirmed that ‘it would be wholly unrealistic to treat precisely the same actions as both aggravating and mitigating features’ and hence advised that the usual aggravating factors should not apply in such cases (R v Inglis  2 Cr App R (S) 13 at 86).
Is there a better option? Some have suggested that the mandatory life sentence is wrong and should be done away with. US style degrees of murder have been suggested. None of the alternatives deal with the fact that those who kill out of mercy, do so with an intention to kill, will have planned the act and in all likelihood would have killed a very vulnerable person. That perhaps highlights the problem with the debate. Unless ‘mercy killing’ can properly be defined, unless those acting out of pure and good intentions can be separated from those who kill for financial or other ignoble reasons, unless a new lesser offence of murder is created, as an alternative to murder, or even more radial, unless euthanasia is legalised, difficulties in decisions to prosecute, try and sentence such individuals will remain.
These latter questions were raised by the Law Commission in 2006 (Murder, Manslaughter and Infanticide, Law Commission No 304, November 2006, Part 7). The Commissioners considered the creation of a new offence of ‘mercy killing’- as suggested by the Criminal Law Revision Committee in 1976 – and a partial defence of ‘mercy killing’ but recognised, amongst other issues, the difficulties with definition. They concluded that the Government should undertake a public consultation on whether and if so, to what extent the law should recognise either an offence of ‘mercy killing’ or a partial defence of ‘mercy killing’.
There was criticism following a 2008 Consultation Paper (Murder, manslaughter and infanticide: proposals for reform of the law), which failed to address those issues raised by the 2006 Law Commission report. The then Government’s response was that ‘mercy killing is a major issue that successive Governments have made clear is a matter of conscience for Parliament to decide’.
So the position remained in July 2010 as stated by Lord McNally, the Lib Dem justice ministers in the House of Lords. So it seems, it remains today.