Dishonesty, coercion & pressure

The assisted dying Bill leaves the terms, dishonesty, coercion & pressure open to interpretation, argue Edward Hodgson & Andrew Smith

At present, under s 2 of the Suicide Act 1961, a person (D) commits an offence if they do an act capable of encouraging or assisting the suicide (or attempted suicide) of another. D is only criminally liable if their act was intended to encourage or assist suicide.

Additional and more nebulous criminal offences may soon be added to this most contentious of areas. The Terminally Ill Adults (End of Life) Bill is currently making its way through the House of Commons. The Bill would allow adults who are terminally ill to request and be given assistance to end their life. One of the many safeguards proposed in the Bill is the introduction of a new criminal offence, which can be committed by inducing one of two outcomes. Clause 26 criminalises the conduct of a person (D) who, by ‘dishonesty, coercion or pressure’, induces another person to (a) make or maintain a declaration requesting assistance to end their life, or (b) selfadminister a substance with which that person may end their life.

Unlike s 2 of the Suicide Act 1961, there is no requirement in cl 26 that D ‘does an act’ that induces the outcome. Nor, unlike in s 2, is there any requirement in cl 26 that D’s conduct was intended to induce the outcome. It is sufficient that D’s dishonesty, coercion or pressure induces the outcome.

These differences with the s 2 offence raise foundational questions about the scope of the cl 26 offence. Can the cl 26 offence only be committed if D performs positive acts, or would omissions suffice? And what must be proved in terms of D’s state of mind if their conduct is alleged to amount to dishonesty, coercion or pressure?

The Bill does not define ‘dishonesty’, ‘coercion’ or ‘pressure’. In the context of end of life care, these concepts assume particular significance. Things that are said or done by family members risk being misconstrued by vulnerable patients who no longer wish to be a burden on those caring for them. The patient may feel coerced or pressurised even if that was not the intention. Conversely, coercion and pressure, particularly in emotionally charged domestic relationships, can assume many forms. They can be subtle and insidious, and by their nature they can be difficult to detect and leave little evidential trace.

Dishonesty

The first of these concepts—dishonesty—is, of course, well established in the criminal law. It appears in common law offences such as conspiracy to defraud, statutes such as the Theft Act 1968, and its interpretation has been the subject of detailed judicial consideration (see Ivey v Genting Casinos [2018] 2 All ER 406 and R v Barton and another [2020] EWCA Crim 575, [2020] 4 All ER 742).

Moreover, the criminal law is clear that a person can behave dishonestly by omission. For example, s 3 of the Fraud Act 2006 provides that a person can be guilty of fraud by a dishonest failure to disclose. This would seem to support the argument that the cl 26 offence can be committed by failing to act, as well as doing an act, provided the failure was dishonest.

Coercion

The second of the concepts—coercion—is also an existing term in the criminal law. For example, it is used in the forced marriage offence in s 121 of the Anti-social Behaviour, Crime and Policing Act 2014 and it is part of the actus reus of the offence of using controlling and coercive behaviour in s 76 of the Serious Crime Act 2015.

The cross-government definition of domestic violence and abuse (as contained in the Home Office’s statutory guidance framework on controlling or coercive behaviour) explains that controlling or coercive behaviour involves ‘patterns of abuse that occur over a prolonged period of time, or cause fear of violence on two or more occasions, which enables an individual to exert power, control or coercion over another’. The CPS guidance on the offence of controlling and coercive behaviour includes examples of coercive conduct, such as isolating a person from friends and family, enforcing rules and activity which humiliate, degrade or dehumanise, economic abuse and physical intimidation.

While these examples of coercion will typically be committed by positive acts, rather than omissions, that will not necessarily be the case in the context of end of life care. As Diane Abbott MP noted in a Commons debate on the Bill on 29 November 2024, it can be about ‘not what you say but what you do not say—the long, meaningful pause’. It is not difficult to see how such pauses—in response to significant or difficult questions or decisions—might be interpreted as coercion (or at the very least pressure) in the mind of the terminally ill person who retains capacity but is nonetheless vulnerable to undue influence. The same goes for omissions—for example, through repeated instances of neglect or failure to provide care or support—which have the effect of inducing a patient to request assistance to end their life.

This raises interpretive questions, which the current drafting of the cl 26 offence does not satisfactorily answer. Is coercion judged objectively, such that it does not matter whether D personally intended their conduct to be coercive? If intentionality must be proved, is that an intention to act coercively in general terms, or an intention that the coercion should induce the particular outcome specified in the offence—ie, the request for end of life assistance? At present, the boundaries of the offences are worryingly vague.

Pressure

These interpretative difficulties are even more acute in relation to the third and final concept—pressure. Pressure is not an established term in the criminal law and it is difficult to predict how the courts might interpret it. It is unclear what distinction there is intended to be between ‘coercion’ and ‘pressure’ except to say that the dictionary definition of ‘pressure’ is wider than the dictionary definition of ‘coercion’. The Bill’s explanatory notes do not elucidate any difference.

As with coercion, pressure does not necessarily include the use of force, and it is possible to pressurise someone by acting entirely passively. People do not generally act positively in order to convince their loved ones suffering from terminal illness to consider assisted suicide. A terminally ill person might be induced to consider assisted suicide as a result of what those close to them refrain from saying or doing.

“ As it is currently drafted, the clause risks criminalising the compassionate actions of those who seek to support a loved one”

As an example, one could imagine a terminally ill person (A), whose partner (B) is paying for their palliative care. A might see that B, coming to visit them one day, arrives by bus, having had to sell their car in order to continue paying for their care. A might, when visiting B at their home, notice a letter from the debt collector on their kitchen table. B might mention in passing to A that they are experiencing financial difficulty. As a result of this, A might decide that the burden they are now placing on B has become too great, and then make a declaration requesting assistance to end their life. If they do so, could the passive actions of B, which were never intended to induce A to end their life, represent a subtle and unseen form of pressure? If so, their actions might well attract criminal liability under the terms of cl 26 as it is currently drafted.

Conclusion

In relation to assisted suicide cases, Keir Starmer (the then director of public prosecutions (DPP)) issued in 2010 an offence-specific policy for prosecutors. It follows the House of Lords’ decision in R (on the application of Purdy) v DPP [2009] UKHL 45, [2009] 4 All ER 1147, which required the DPP to ‘clarify what his position is as to the factors that he regards as relevant for and against prosecution’.

The DPP’s policy lists several factors, the presence of which would tend against a prosecution being in the public interest. An assisted suicide prosecution is less likely to be required if the actions of the suspect were only of minor encouragement or assistance, and/or might be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide. The DPP’s policy also states that the public interest would tend against a prosecution if the suspect’s actions were wholly motivated by compassion.

The application of the DPP’s policy may help to explain why successful assisted dying prosecutions have been exceedingly rare. CPS data shows that from April 2009 to March 2024, 187 assisted suicide cases were referred to the CPS. The CPS decided not to prosecute 127 of these, and the police withdrew 36. Only four cases have ever been successfully prosecuted, according to the latest CPS figures.

The dearth of successful prosecutions reflects the fact that the majority of assisted suicide cases concern people who have, under great emotional strain and perhaps reluctantly, taken steps to assist the dying of a terminally ill and suffering loved one. The DPP’s policy clearly acknowledges that it may not be in the public interest to criminalise the actions of these people.

The cl 26 offence aims to provide an important safeguard to protect the vulnerable from the actions of those who might (for example) gain financially as a result of their death. However, as it is currently drafted, the clause risks criminalising the compassionate actions of those who seek to support a loved one who is suffering in the face of a terminal illness.

If the offence is enacted, it will be for the CPS to address difficult practical questions about the evidence and the public interest on a case by case basis. For example, at what stage might helping a terminally ill patient to decide whether to seek assistance to end their own life (for example, by discussing how they might make this decision and who might be consulted) constitute pressure that induces the patient to seek end of life assistance? However, there is a risk that too much is left to prosecutorial discretion. The cl 26 offence should be more clearly drafted—or, at the very least, accompanied by comprehensive guidance—to ensure that its scope is clear and its objectives are realised.

This article was first published by New Law Journal on 6th June 2025