The Director of Public Prosecutions would be aiding a crime if she granted a request from a terminally ill woman to outline what factors would be considered when deciding whether to prosecute for assisted suicide, the DPP's lawyers have told the High Court.
The DPP was very concerned not to set out "a road map" under which a person may more safely commit a crime and avoid prosecution, Paul O'Higgins SC argued today.
Providing factors relevant to the DPP's prosecutorial discretion before a crime of assisted suicide occurs would amount to the DPP helping someone avoid prosecution or "quasi-legislating" when the DPP could do neither, he said.
It was "simply unacceptable in a modern democracy" for the DPP to grant immunity from prosecution.
While the DPP recognised the situation confronting Marie Fleming is "appalling" and it was reasonable for Ms Fleming to seek prosecutorial guidelines to avoid her partner Tom Curran being prosecuted should he assist her in taking her own life, what was being sought was outside the constitutional remit of the DPP.
He agreed the DPP has issued guidelines relating to prosecution of crime but said those were general and effectively indicated the more serious the crfime, the more likely a prosecution.
He agreed with Mr Justice Nicholas Kearns that Mr Curran could, before any contemplated offence of assisted suicide, write to the DPP outlining that certain safeguards as stipulated by the UK DPP and the Canadian courts for assisted suicide cases were complied with. Such a letter could be similar to "a will", the judge remarked.
The DPP could take such correspondence into account only after any crime was commiteed, Mr O'Higgins said.
He was making submissions in the continuing action by Ms Fleming (58), who is in the final stages of Multiple Sclerosis, for orders permitting her to be lawfully assisted to take her own life at a time of her choice and requiring the DPP set out what factors are taken into account in deciding whether to prosecute for assisted suicide.
Suicide is not illegal here but Section 2.2 of the Criminal Law Suicide Act 2003 provides an absolute ban on assisting suicide. Ms Fleming contends Section 2.2 breaches her rights to life, privacy, autonomy and equality under the Constitution and European Convention on Human Rights.
The case is being heard by a three judge High Court comprising the President of the High Court, Mr Justice Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.
Earlier, in reply to Mr Justice Kearns, the Irish Human Rights Commission said it considers a person has a right, flowing from their personal autonomy rights, to take their own life in defined and extreme circumstances.
Frank Callanan SC, for the Commission, said he wanted to avoid using the term "right to die" as that was "emotive and not entirely accurate".
He agreed with Mr Justice Hogan another way of looking at Ms Fleming's case was whether the State, in criminalising assisted suicide, could compel a person to live on and endure a "horrible and unimaginable death" that in other circumstances would amount to torture.
In detailed submissions, the Commission has asked the court to consider if the criminalisation in absolute terms of assisted suicide here is justified given its impact on severely disabled and terminally ill people who may wish to take their own lives but cannot.
The court must decide whether such absolute criminalisation was justified having regard to the interference with the personal rights of Ms Fleming, including to equality and privacy, it said. The court had to examine the purpose of Section 2.2 and consider whether that purpose could be achieved in other and less absolute terms.
Shane Murphy SC, for the State, said a person who fears they may be prosecuted for an offence may lawfully communicate with the DPP, who must take that communication into consideration. The DPP must take into account all factors in deciding whether to prosecute an offence but could only do so after commission of that offence, he said.
The DPP may issue guidelines relating to matters to be taken into account in exercising her discretion on prosecution but that was a matter for the DPP herself, counsel stressed.
Replying, Ronan Murphy SC, for Ms Fleming, said the DPP has specific discretion concerning assisted suicide offences and no statutory authority prevented her issuing guidelines. The indication the DPP would consider any letter stating assisted suicide safeguards were complied with did not go far enough as Ms Fleming would still not know if the DPP would consider the public interest would be taken into account so as to mitigate the risk of prosecution for assisted suicide.
Ms Fleming wanted clear guidelines specific to the offence of assisted suicide or types of assisted suicide, counsel said. They were not seeking a letter of comfort or guarantee of immunity from prosecution, he added.
The case resumes on Tuesday.
