In defence of the right to die

The idea that assisting in the death of the terminally ill is tantamount to murder is morally repugnant

Crime and punishment is about prohibited intentional acts that deserve to be punished by society, and no act deserves to be punished more than intentionally killing another person for which the punishment used to be the death penalty reduced to life imprisonment in most civilised countries only relatively recently.

There is however one kind of intentional killing that splits free thinking societies across the globe. It is mercy killing or euthanasia about which the case going through the courts in Cyprus makes it topical, but on which it would be wrong to comment save to mention it in passing to avoid being accused of ignoring the elephant in the room.

There are two schools of thought about euthanasia. One is that in certain circumstances medically assisted dying (MAD) should form an integral part of an individual’s right to die if terminally ill and suffering from unbearably painful physical illness. The right derives from natural law: the autonomy that inheres in every natural person of full age and capacity to end their life – with medical assistance if necessary.

The other is that euthanasia is the thin end of the wedge with potential for abuse by both the state and individuals for their own nefarious reasons, as happened in Germany during the Nazis’ reign of terror 1933-1945 and as can happen in societies and families with scant regard for the elderly disabled and infirm.

The thin end of the wedge argument has been given credence by what happened in Canada where MAD was made lawful for the terminally ill in 2016, extended to the seriously physically ill in 2021 and, controversially, to the mentally ill in March 2023 – eugenics went out with the Nazis but may creep back again if we are not careful.

There are safeguards in place in Canada, but once the genie is out of the bottle there is no knowing where it will end. During the Covid virus pandemic, the elderly and infirm in care homes in Britain and elsewhere died of the virus in significant numbers, and God knows what would happen next time round if euthanasia aligned with eugenics gains too much respectability in the corridors of power.

The state is inherently too impersonal to be trusted with the power to determine lawful euthanasia and as always it is a case of striking the right balance that is best left to individuals and their medical advisers rather than the state.

Most rational people accept that easing the exit of persons suffering intolerable and incurable pain and suffering for whom the prospect of death is a welcome relief ought not to attract criminal sanction at all.

The idea that assisting in the death of such sufferers is tantamount to murder or aiding and abetting crime is morally repugnant and has no place in any civilised system of justice.

Murder is defined as the unlawful killing of another by a person of sound mind with malice aforethought. Unlawful means not in self-defence and not by accident; and a person is of sound mind if he or she is not insane and not of mentally diminished responsibility.

In English law malice aforethought is old fashioned English for the mental element in murder which is an intention to kill or cause serious injury that does not require premeditation, though planning is obviously probative of intention in cases in which it is in issue.

When directing a jury in England judges are discouraged from defining intention because it is thought that people know what it means; though sometimes it is necessary to direct juries that a person intends to cause a result if he acts in order to bring it about and to explain that it is distinct from motive.

Motive is not relevant to the definition of murder. In English law as it stands the motive of mercy-killing is no justification or excuse for murder although, ironically, it is evidence of intention to kill. However, mercy-killing is a statutory mitigating factor in murder cases after conviction that has to be taken into account by the judge in setting the minimum term of a life sentence that is mandatory in murder cases – the minimum term being the time you actually spend in prison before you are eligible for release on parole.

In 2011 in a mercy-killing case a minimum tariff of five-years was imposed on appeal in the case of a woman who killed her son wrongly believing he would remain in a persistent vegetative state for life after receiving head injuries, whereas the medical advice was that he would be able to live an independent life in five years. In another case a woman was cleared by a jury of murdering her husband in a suicide pact in which he died and she survived.

Juries are free to return perverse verdicts if they don’t like a law or a prosecution or both. However defence counsel cannot stay on and address the jury on the basis their client is not guilty if there is no defence in law and have to withdraw until after verdict.

Many people are uncomfortable that euthanasia is lawful in some European countries but not in others on a continent that prides itself on its shared values. Euthanasia or medically assisted dying (MAD) is a right that with proper safeguards ought to be made available in an additional protocol of the European Convention on Human Rights (ECHR).

Many states had problems with the abolition of capital punishment, but by 1983 the trend in member states became a general tendency against the death penalty and the Council of Europe abolished it in Protocol 6 of the ECHR.

Euthanasia is more complex and will have to be a qualified right, whereas capital punishment was abolished absolutely with no derogations or reservations. There is evidence that the trend in some countries in favour of the right to MAD is spreading, and the hope is that a protocol with the general right to die in dignity is now in prospect – with safeguards of course.

Alper Ali Riza is a king’s counsel in the UK and a former part time judge