Q
72Dr.
Iddon: Young people—teenagers in
particular—often write poetry, song lyrics and other material
that has a feeling of death or helplessness about it, and post it on a
website. Other young people have access to those postings and might be
encouraged to attempt suicide. Would the poster of such information be
liable to prosecution under clause
46? Professor
Horder: I hope that that would not be the case. That
is not to say that I approve in any way of the publication or
dissemination of that sort of dark material, as one could call it. But,
one has to rely on proposed new subsection (1)(b) in clause 46, which
states that the act must be intended to encourage or assist a suicide
or an attempted suicide. I will not pretend to be at the cutting edge
of contemporary culture, but my understanding is that that sort of
posting of music, lyrics or whatever is not intended to produce that
effect. There may be extremely depressing songs—there is a long
tradition of that—but I do not believe that the material in any
of these instances, no matter how many people may have taken it as
their cue, was ever intended to have that
effect.
Q
73Dr.
Iddon: That kind of freedom of expression is, in your
opinion, protected under the
law. Professor
Horder: That sounds like an invitation to hang myself
out to dry, but yes, I believe that it is. It is protected by the need
to prove intention in that clause.
Q
74Mr.
Garnier: I take on board all that you say about proposed
new subsection (1)(b)—the express requirement to prove intent to
encourage or assist—but do you think that the use of
“capable of encouraging or assisting” in proposed new
subsection (1)(a) and elsewhere below is apt to assist? Is it not
adding a layer of froth or blancmange? Why do we not just say,
“does an act that encourages or assists”, rather than use
the words, “capable of”? The judge will make a decision
about whether the evidence is capable of proving the particular element
of the offence, and it will be for the jury to decide whether it does
so in fact, but we see “capable of encouraging” and
“capable of encouraging or assisting” throughout this set
of clauses on
suicide. Professor
Horder: The same phrase appears in the Serious Crime
Act 2007 and also in our recommendations for participating in crime
more generally. The issue is that these offences are committed, as you
know, in the inchoate mode, as we lawyers say. So you do not actually
have to have assisted or encouraged to commit the offence. In other
words, going back to the example I was talking about a moment ago,
where people in a crowd are shouting to the person up above, it would
be virtually impossible to do anything in a case like that if you had
to show that their voice carried all the way up there and was heard by
the person and they could say, “Yes, it was his voice I
heard.”
Q
75Mr.
Garnier: The problem relates to the city of Derby. The
superintendent of the Derbyshire police force said that Derby lost its
humanity on that day. Whether or not that is a sensible thing for him
to have said is neither here nor there. However, there could be an
issue, surely, in a case like that—if you happened to light upon
one, two or three of the individuals in the crowd and brought them to
court and prosecuted them under this provision—about whether
they actually intended something or whether they were just mouthing off
and about whether they had the requisite intent to encourage or
assist. Professor
Horder: That would certainly be an issue, but that is
the 46(2)(b) issue—isn’t it?—rather than a
46(2)(a) issue. In other words, it is an issue about whether there was
an intent to encourage, not about whether they had done an act capable
of encouraging. If they are shouting, “Jump!”, that is
certainly an act capable of encouraging, I would have
thought.
Q
76Mr.
Garnier: Surely, the better question to ask in that
circumstance is, “Did what they shouted encourage or
assist?” Of course, one can only do that by inference, because
one does not know what is inside the dead person’s
mind. Professor
Horder: That is the difficulty, really. I think that
we wanted to avoid a lot of cases that would be factually too difficult
to determine beyond reasonable doubt, or one way or another, about
whether there was encouragement or
assistance. Let
us take a silly example. If two people wish to assist someone to commit
suicide and both, unbeknown to each other, put a bottle of pills next
to the person’s bed and the person takes one lot of pills but
not the other and it cannot now be determined whose pills they were, it
would be strange, in a way, if both of them were not in the same
position. They both did an act capable
of assisting the suicide—that is what they did wrong in terms of
the law—and it should not really matter which one actually did
assist the suicide, because in a way it is a matter of chance.
Who knows who it turned out to
be? Q
77Mr.
Garnier: It matters a lot to the two individuals who might
be prosecuted—one without the intent and one with the
intent—and, of course, the
prosecution— Professor
Horder: I am assuming that they both have the intent.
Let us say that they both have the intent. They both put the pills on
the bedside table for exactly the same reason, but without realising
that the other bottle that happens to be there is there for the
self-same purpose. That is why I say it is a rather silly example. But
in a way there is an analogy with the Derby case, because lots
of people were
encouraging. The
irony is that, the more people there are encouraging, the harder it is
to say that any one of them did encourage. As a matter of proof, it is
difficult to say, then, is it not? That is why we think that, in terms
of the focus initially, it is clearer and simpler to say that there is
an inquiry in two parts here. First, was there an act capable of
encouraging? And if someone shouts “Jump!”, that
is certainly an act capable of encouraging. Secondly, under 46(2)(b),
you have to ask whether that act was intended to encourage. It may very
well be that, in that case, the person would say, “Oh, I just
shouted the words because everyone else was shouting them. I am a bit
slow that way. I did not
realise.”
Q
78Mr.
Garnier: Surely you are going through the same
intellectual hoops as you would under section 2 of the Suicide Act
1961, but just adding complications. Everyone who needs to know knows
what section 2 of that Act means and how it can be explained to the
jury, do they
not? Professor
Horder: That is a bold
assertion.
Q
79Mr.
Garnier: I have only got two
minutes. Professor
Horder: We would, broadly speaking, be in favour of
updating this language so that it is consistent with what we are
recommending across the board when person A becomes involved in the
perpetration of a crime or, in this case, a suicide by another person.
We think it makes sense to have the same language applying across the
board. We saw no reason, here, to say anything
different.
Q
80David
Howarth: Can I move you on to 2A, which deals with the
further rules on acts capable of encouraging or assisting? What is the
thinking behind 2A(2), which says
that “Where
the facts are such that an act is not capable of encouraging suicide,
for the purposes of the act it is treated as encouraging suicide if the
facts had been as the defendant believed them to be at the time of the
act”? Is
that not going back to the days of impossible
attempts? Professor
Horder: It is, as you know, the law that you can
attempt the impossible. That is an important principle, because if I am
right about what is being said in that clause—I have not had
cause to look at this for some considerable time—it means, to
carry on with the example
of putting the pills on the table, that if it turns out that you put the
wrong pills out and they are just a placebo and would not do anything
to anybody, but you do not know that, you are caught by 2A. So as long
as you believe that they will be capable of assisting and
encouraging—which you do, because you think they are whatever it
is you are putting on the table—then that should be sufficient.
We do not want to go through all that horrid case law yet
again—
Q
81David
Howarth: No, we do not. But similar questions arise. What
if you believe that you could do it by thought transference or
witchcraft? Professor
Horder: That is a sort of tutorial question that one
asks
students.
Q
82David
Howarth: I am asking you.
Professor
Horder: The great thing about tutorials is that you
can ask questions that you do not know the answer to—unlike
lawyers. I think that, if I were to venture a solution, something has
to be rationally capable of doing that. I do not believe that English
juries would take that view in respect of thought
transference—if anyone believes in telekinesis, would they raise
my right hand?—and those kinds of
things.
The
Chairman: Do Members have any further questions for
Professor Horder? That brings us to the end of our business for the
day. Ordered,
That further consideration be now adjourned. —(Ian
Lucas.) 12.58
pm Adjourned
till this day at Four
o’clock.
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