My Lords, we should move on from the guidance, which does not work legally or practically. Its effect is that the Director of Public Prosecutions essentially decides whether to prosecute based on the defendant’s motive, which is not an issue in any trial under Section 2, so the decision is made without the putative defendant having any opportunity to challenge the evidence on which not just the decision to prosecute is made but, essentially, whether guilt or innocence is involved. In 99% of these cases, the issue will not be motive but whether someone committed the act of assistance, and that will not be in dispute—for example, helping someone to go to Switzerland to take their own life.
The idea that that is a fair criminal justice process will not withstand examination as time goes on. In addition to its failure as a criminal justice process, it does not achieve its policy purpose, which is to be compassionate to those motivated by compassion and deter those who are not. In support of that, I rely first on the effect that the guidelines have, which is to encourage amateur assistance only and to drive people to Switzerland. There is no compassion in that. As for deterrence, see the numbers who are joining Dignitas go up and up. It does not work on either basis.
The reason why there are these guidelines is that Parliament will not address the issue. My Bill says that we should look at the issue before the death has occurred and recognise that it is not one that can be dealt with by a botch in the criminal law. It should be dealt with by examining the cases in advance and seeing whether compassion is involved, thereby providing proper protection to people who might otherwise be the victim of coercion. The very patronising approach being taken in relation to this in my view leads to a lack of compassion in cases where, above all, compassion is required, and no protection for the vulnerable.