Morris v Morris, Shmuel and White [2024] EWHC 2554 (Ch), 9 October 2024, Judgment here.
On occasions a coroner may be faced with a case where the issue of another person aiding the deceased to take their own life arises. Whilst suicide has long been decriminalised, assisting someone to end their life remains a criminal offence carrying a maximum prison sentence of 14 years. Clear guidelines have been issued by the DPP to prosecutors in such cases, which set out when bringing charges will and will not be considered in the public interest.[1]
Where the death is in England or Wales, or the deceased’s body is returned here from abroad, then an inquest must follow. Of course it is not for the coroner to make any determination about whether a prosecution should or should not be brought. Nevertheless, a coroner hearing such a case (and there have been almost 200 in the past 5 years) will need to bear in mind a number of issues at the inquest, including the right of a witness not to self-incriminate and whether a conclusion of unlawful killing might need to be considered.
There is little guidance as to how one might approach such a case in the coronial jurisdiction, however any coroner or lawyer involved might draw some learning from seeing how the judge in this recent civil case (involving inheritance under the will of someone who had taken their own life in Switzerland) dealt sensitively and compassionately with the position of the loving family members who had been faced with a dreadful and tragic dilemma.
The Background
Myra Morris was 73 when she died in the presence of her much-loved family at a clinic in Switzerland, having self-administered a fatal overdose of pentobarbital. Her husband, her two adult children, and her sister, had all travelled to Switzerland to be with Myra at her death and say their goodbyes
At the time of her death Myra was suffering from Multiple System Atrophy, a rare and degenerative neurological disorder with no known cure. During the previous two years Myra’s condition had deteriorated to the point where she had little enjoyment from life, was in constant pain and found it very difficult to cope. In 2023 as Myra’s condition became increasingly unbearable for her and, with no hope of recovery, she had told her husband that she wanted to die.
Myra’s firm wish was to travel to Switzerland to end her life with medical assistance there, but she did not want her husband to go to jail if he was involved. He tried to dissuade her, saying that, although he totally understood her wishes, he could not be part of it. However, eventually he realised that he could not ignore her request, because it was what she so strongly wanted. Their adult children were informed who both were devastated by what they were told. Her daughter did not believe in assisted dying and was adamant that she did not want it to happen. Her son was realistic that his mother’s quality of life would continue to deteriorate and that the condition from which she was suffering was both humiliating and degrading.
The offence of assisting suicide
The relevant parts of s.2 Suicide Act 1961 state:
(1) A person (‘D’) commits an offence if:
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D’s act was intended to encourage or assist suicide or an attempt at suicide.
However subsection 2(4) then goes on to state that “no proceedings shall be instituted for an offence under this section except with the consent of the Director of Public Prosecutions”. As these cases can range from circumstances where a victim is being pressured to end their life, to actions wholly motivated by compassion, the question of whether a prosecution is in the public interest looms large. Between 1 April 2009 up to 31 March 2024, there have been 187 cases referred to the CPS by the police that have been recorded as assisted suicide. The effect of sub-section 2(4) has been that 163 of these 187 cases were not proceeded with.[2]
After discussions with solicitors there was, understandably, a degree of confidence that, in the light of the guidance on prosecution in such cases produced by the DPP[1] it would not be considered in the public interest to bring charges against her husband if he were to assist Myra in fulfilling her wish.
With her lawyer’s assistance Myra prepared a witness statement describing what she had come to regard as the intolerable nature of her life in graphic detail. She also explained that she had a settled wish to travel to Switzerland for an assisted death as soon as practically possible, that she was unable to travel to Switzerland on her own, that she was daunted by the prospect of the journey but that she knew that she was unable to take her own life unassisted. Her statement said that her husband and children had agreed to accompany her and that it was her strong wish that they should not get into trouble as a result. There could be no suggestion that any undue influence, pressure or encouragement had been exerted on Myra.
Her husband then helped Myra make the necessary administrative arrangements for her to travel to the Swiss clinic: they arrived there with her sister and their children in December 2023. Even at the end her family tried to talk Myra out of her decision, but she was resolute. All four members of the family were with Myra when she took her own life the following day. As the judge later put it, after a long, happy and loving marriage, Myra’s husband “sacrificed his own happiness and put himself at risk of prosecution to honour the heartfelt wishes of his wife.”
On his return to the UK Myra’s husband attended a police station and reported the events surrounding his wife’s death and the nature of his own involvement. After perusing the documents he provided (including Myra’s ante-mortem witness statement), the immediate and compassionate response of the police was to take no further action. As Myra’s body returned to the UK for her funeral the coroner was notified, and the necessary inquest was promptly held.
Risk of forfeiture
The sad tale might have ended there, had it not been that it was belatedly recognised that the degree of family involvement in Myra’s death might engage s.1 Forfeiture Act 1982. This section embodies the rule of public policy that prevents anyone who has unlawfully killed another from acquiring a benefit in consequence of the killing. The effect of this rule would have been to bar her husband, and possibly her children, from inheritance under Myra’s will.
All involved, including her husband, accepted that the role he had played in making arrangements for Myra’s travel to Switzerland was sufficient to engage the provisions of section 2(1) the Suicide Act as, despite his very great reluctance, he had indeed done acts capable of assisting Myra’s suicide with the requisite intention to do so.
But even so, s.2 of the Forfeiture Act gives the court power to modify the effect of the forfeiture rule “if satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case.”
Therefore an application for relief under s.2 Forfeiture Act was required to allow Myra’s family to inherit her estate. Myra’s will and her clearly expressed capacitous wish had been for her husband to inherit. However, if the relief were not given the forfeiture rule would certainly disable her husband, and possibly her children (whose position under the Suicide Act was less clear) from taking any beneficial interest under Myra’s will.
The husband’s position
There was no dispute regarding the facts of what had occurred, the evidence was, as the judge remarked, a “credible and a tragic reflection of the situation in which the Morris family has found itself, faced as they all were with a much-loved family member wanting to take her own life”.
Whilst the engagement of s.2 Suicide Act 1961 in respect of Mr Morris was not in dispute, in a sensitive judgment the judge expressly found that the assistance Mr Morris gave his wife could not be characterised as “encouragement” nor intended by him to be such, (as described in section 2(1) of the 1961 Act). Nevertheless, his ‘assisting’ his wife, even in the absence of any encouragement, was sufficient for the offence to be made out. The forfeiture rule was inevitably engaged.
The children’s position
The initial application had been for relief from forfeiture under s.2 1982 Act for Myra’s husband alone, with all Myra’s family fully supporting his application. However at an early case management hearing a judge raised the question of her children’s position – as if Mr Morris did not gain the relief he sought they were next in line to inherit – and the same forfeiture rule might then apply to them.
The question to be resolved was whether their actions also fell within 2(1)(a) and (b) of the Suicide Act 1961. Did the fact that they too had travelled to Switzerland mean that they, like their father, had assisted in Myra’s suicide?
The judge observed that accompanying a person to a clinic in Switzerland in the knowledge that they intend to take their own life was theoretically capable of being part of a course of conduct which constitutes assistance within the meaning of section 2(1)(a). Indeed, and depending on the circumstances and what occurred on the journey, the mere act of accompaniment may in itself need to be construed as an act of encouragement or assistance. But, importantly, this will not always be the case.
Here the arrangements had been made and assistance given by another person (Mr Morris). Myra’s children and sister, were there as comforters – to be there with Myra when she died, but they did not commit acts capable of assisting her, because they did not have to. Furthermore, their presence could not properly be treated as acts capable of encouraging Myra’s suicide. Indeed, to the contrary: it was clear that Myra would have gone anyway whether or not they had come along, and to an extent she had encouraged them not to do so.
The judge was clear: merely being present at another’s death was insufficient to amount to an offence under s.2(1) Suicide Act.
Relief from forfeiture
On the question of relief from forfeiture for Mr Morris. The judge considered the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (here) issued by the Director of Public Prosecutions which lists the public interest factors pointing towards and against prosecution. Having examined each of the 16 factors which tend in favour of prosecution, the judge concluded that none of them were present. The fewer factors listed against prosecution (see §45 of the Policy) are mainly the converse of the factors which tend in favour, they include: (i) suicide being a settled and informed decision of the deceased; (ii) the suspect being wholly motivated by compassion and giving only reluctant encouragement or assistance in the face of a determined wish on the part of the victim; (iii) seeking to dissuade the victim; (v) reporting the victim’s suicide to the police and fully assisting in their enquiries.
The judge noted the Court of Appeal decision in Dunbar v Plant[3] which had linked the public interest in prosecution to the application of the forfeiture rule: “Where the public interest required no penal sanction, it seems to me that strong grounds are likely to exist for relieving the person who has committed the offence from all effects of the forfeiture rule.”
In the judge’s view strong grounds existed here. Having gone through the individual factors the judge also more broadly looked to “the degree of moral culpability for what has happened”. It was necessary consider whether there was anything about the conduct or state of mind of the person whom the statute calls the ‘offender’, apart from the bare commission of acts of assistance with intent, that indicated any ‘moral culpability’. Here there was none. It was clear that Myra’s husband assisted her, not because he wanted Myra to die, far from it, but rather because he loved and respected his wife too much to disregard her wishes.
The judge therefore declared that he had “no doubt” that this was a case in which he should modify the forfeiture rule by excluding its application in full.
Comment
As the Court of Appeal have previously recognised[4] although assessing the blameworthiness of an offender is a familiar exercise for a sentencing judge in the criminal jurisdiction, the exercise was not one much welcomed by a judge exercising a civil law jurisdiction. So much more perhaps for a coroner who, although never required to determine criminal culpability, will, since the decision in Maughan, now more often be faced with a decision regarding whether returning an ‘unlawful killing’ conclusion is apposite.
Just as the judge here was required to assess whether ‘culpability’ was such as to justify the application of the forfeiture rule, a coroner may need to consider whether, even though the elements of the offence of assisting suicide appear made out or are admitted, an ‘unlawful killing’ conclusion is required. Each case must of course be decided on its own facts, where undue pressure has been placed on the deceased the outcome may well be very different. But in cases such as this one, the more appropriate and compassionate approach may be to provide a short narrative conclusion concisely summarising what factually occurred, but without any reflection of the legality of the situation. There is no rule of law that says short form conclusions must be returned in inquests. Such conclusions are, as the Supreme Court observed in Maughan,[5] just ‘notes’ on a form and it is “plainly not compulsory that any of the short form conclusions be reached”[6] in any inquest. Although short form conclusions are helpful for simplicity and clarity and for statistical purposes (hence the Chief Coroner’s guidance No.17 extolls that short form conclusions should be used whenever possible) both box 3 of the ROI and a narrative conclusion are much more subtle tools.
The Bill to legalise assisted dying for people in England and Wales with less than six months to live, if ever passed[7], may reduce the number of cases suggesting potential offences under the 1961 Act, and ‘assisted dying’ will be returned as an inquest conclusion. In the meantime the compassionate way in which the judge in this case dealt with a dreadful situation for all involved gives a welcome steer on approaching such tragic cases.
Footnotes
[1] See the current CPS guidance to prosecutors here
[2] 127 were not proceeded with by the CPS and 36 cases were withdrawn by the police. See: CPS assisted suicide figures, as published 31 March 2024 here
[3] [1997] EWCA Civ 2167; [1998] Ch 412
[4] See Dunbar v Plant
[5] R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 and see our earlier blog on the case here
[6] See Lord Kerr in Maughan at §111 (albeit dissenting on the ratio of the case)