At your mercy

Recently the news has been full of debate about the criminal liability of those who assist the suicide of a loved one with chronic illness, but in R v Inglis [2010] EWCA Crim 2637 the Court of Appeal (Lord Judge CJ, Irwin J and Holroyde J) was confronted for the first time with the difficulties that arise in the context of a mercy killing.

The appellant was the mother of three sons and had a history of depressive illness. On 7 July 2007, her son Thomas, 21, was involved in a fight and received a blow to the head; against his wishes he was required to go to hospital and an ambulance was called. On the way to hospital the back doors of the ambulance opened twice, and then on a third occasion Thomas fell out of the back and suffered severe head injuries.

He was taken to neuro-intensive care in a deep coma and put on a life support machine. The removal of part of the front of his skull to relieve pressure on the brain saved his life. There was a difference of opinion within the family in regard to a second similar operation that was carried out three days after the incident; the appellant considering it to be subjecting her son to yet further and completely unnecessary suffering, while his father gave the necessary consent on the basis of the prognosis of the supervising consultant. The operation, although successful, resulted in severe disfigurement. The appellant later said that the first time she saw her son her heart broke.

Growing obsession

The appellant became obsessed that Thomas would be a vegetable, despite the contrary suggestion of the doctors, and that he ought never to have been resuscitated and should have been allowed to die a natural death.

By September 2007 the appellant's family were increasingly concerned about her. On 4 September she visited her son when the hospital was short staffed, and took the opportunity to inject him with street heroin before leaving, causing a cardiac arrest which left him clinically dead but from which he was resuscitated.

The appellant said she would plead guilty to attempted murder on the basis that it would have been a mercy killing, and it remained clear that the only remorse she showed was that her attempt had failed. It was also overwhelmingly likely that Thomas' condition deteriorated as a direct result of the cardiac arrest which followed the injection of heroin. Before that, the indications were for a reasonable neurological recovery, stopping short of the possibility of Thomas ever finding employment. After the cardiac arrest he was in a desperate state of disability and the prognosis was exceedingly poor.

During 2008, the appellant continued to suffer from depressive disorder with additional symptoms of post-traumatic stress disorder, but, despite a bail condition preventing her from doing so, she began to accompany Thomas' father on visits under the pretence of being his aunt. On 21 November she attended alone, however, and administered a fatal dose of heroin before barricading herself into the room and supergluing the lock, managing to keep staff at bay until Thomas had died.

At trial the defence advanced was the limited one of provocation. The Common Sergeant of London allowed all evidence in support to be deployed but withdrew the defence from the jury on the basis that there was no relevant evidence. This ruling was challenged as the sole ground of appeal against conviction, but was upheld. 'There is no doubt at all that the appellant was subjected to great stress and anguish, but dealing with it briefly and starkly, there was'¦ not a scintilla of evidence that when the appellant injected the fatal dose of heroin in to her son she had lost her self-control.'

Wider issues

The court then went on to consider the broader issues arising in relation to mercy killing. It was emphasised that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Similarly, 'the law does not recognise the concept implicit in the defence statement that Thomas Inglis was 'already dead in all but a small physical degree''.

As the law currently stands, the only recognition of the concept of mercy killing arises fleetingly in the statutory sentencing scheme under section 269 of the Criminal Justice Act 2003. Schedule 21, paragraph 11(f) states as a mitigating fact 'a belief by the offender that the murder was an act of mercy'.

It was noted, however, that several aggravating factors appear to counteract that mitigation. Paragraph 10 obliges a judge to account for: (a) a significant degree of planning or premeditation; (b) the fact that the victim was particularly vulnerable because of'¦ disability; and (d) the abuse of a position of trust. Quite sensibly, the court therefore held that these factors should not be taken to aggravate a murder perpetrated in the genuine belief that it is an act of mercy.

Despite the underlying circumstances and the otherwise positive good character of the appellant, the learned judge had imposed the mandatory life sentence with a minimum term of nine years less time spent on remand. On appeal, the court reduced the minimum to five years observing that 'this case involves one of the most difficult sentencing decisions faced in this court'. That must surely be right, but whether five years is the right figure is something that we could debate until Christmas.