Assisted dying, and Patricia Hewitt

Patricia Hewitt is campaigning for the right to die. She believes that terminally ill people who are mentally competent should have access to assisted suicide, and is calling for a Private Members' Bill in parliament to change the law.

Part of me wants to be cynical; she never said anything about this as Health Secretary, after all, when she might have done something about it directly. But then again, this is a genuinely cross-party issue, and if she can achieve something with her campaign, then all power to her.

I'm strongly in favour of the right of a terminally ill, mentally competent adult to decide to end their own life, as long as they make the choice freely and without being put under pressure. For me, that comes down to the core liberal principle of personal autonomy: my life is mine to dispose of, and not the state's to enforce. I do understand the serious practical arguments against assisted dying (how do we know that it's a genuine free choice?), but I would like to think that they can be overcome with well-drafted legislation and high quality medical care. And is it right to let a question of practicality defeat an argument that seems sound in principle?

Beyond all the political arguments, there's an important legal problem in the mix. Currently the law on assisting suicide is ambiguous. In particular, it's unclear whether a person who travels to Switzerland, to help a loved one get to the Dignitas clinic, is committing a crime. MS sufferer Debbie Purdy went to the Court of Appeal last month, arguing that the government had a duty to make the current guidelines more explicit. The court unfortunately ruled that the guidelines were adequate, so in fact, we're still in the dark.

So far, the CPS hasn't prosecuted friends and family who have accompanied patients to Dignitas, and quite right too. From the point of view of a person wanting to spend those precious last few weeks with a dying husband or wife, this is great news. For the legal system, it's not so helpful: only if a relative returning to the UK from Dignitas is charged and tried will we have a final answer as to whether or not it is a crime to go there to support a loved one.

I'm very uncomfortable with that situation. It seems very wrong for someone to be guilty of a crime if they have no way of knowing that whether their conduct is illegal until it finally comes to court! To me, that seems to be a serious breach of the rule of law, and I hope that if Debbie Purdy takes her case to the House of Lords (or the Supreme Court, as it will shortly become), they will decide to clear things up.

The current saga also sheds light on the cruelty and cynicism of so-called Care Not Killing, the campaign group against assisted dying. They have steadfastly opposed any attempt to clarify the law in this area. In other words, for the sake of their own political campaign, they are happy for an unfair ambiguity in the law to put terrifying pressure on terminally ill people and their loved ones, and potentially to rob them of their last chance to say goodbye. I think that's shameful; and I don't see much that's "caring" about their attitude.

Sir Liam Donaldson is a nutter, Part 2

Sir Liam Donaldson is the government's chief medical adviser. Recently, he's been arguing in favour of a new policy: a minimum price per unit of alcohol. That might get rid of the odd handful of dangerously cheap all-you-can-drink deals and promotions, but it'll also force sensible and moderate social drinkers up and down the country to pay more money.

You can argue the toss as to whether this is a good policy or not. Personally, I don't. But the main thing that bothers me is this: why does Donaldson see it as his business to come up with public policy? He's there to advise the government about medical science, so that they can come up with policy measures.

This isn't the first time that Donaldson has put forward ideas that are out of touch with reality. As I blogged last summer, his plans to cut the drink/drive limit for younger drivers were well-intentioned, but dangerous. But when a medical adviser unilaterally decides to invent sweeping measures that touch on licensing law, taxation and highways enforcement, it's not surprising that he comes up with junk.

Now, I'm not for a moment doubting Sir Liam's scientific expertise, and I'm not for a moment claiming that I could come up with any better suggestions of my own. But I would like to think that the state response to alcohol problems is formulated by the Department of Health on the basis of a lot of research and consultation, taking on expertise from a range of different sources. Just introducing something that the CMO dreamed up one evening at the pub is unlikely to make for good law - and if he does want to make the law, why doesn't he just stand for parliament?

E-cigarettes and the smoking ban

When the smoking ban came in, Lib Dems were split by the issue. You could legitimately use key liberal arguments on either side. I argued the point against Stephen Williams MP at a student meeting - I opposed the ban on the grounds of individual freedom to wreck your own lungs; he supported it on the basis that smoking in public caused unfair risk to others. We were both quoting Mill's famous harm principle on opposite sides of the same debate!

The whole thing was confused even further by the legislation itself, which defined "public place" very widely, including privately-run businesses that were open to the public. That made it even harder to find the dividing-line between personal rights and public menace.

The device that's now in the news is the e-cigarette, a fake cigarette which lets you inhale a fine mist of pure nicotine. Currently unregulated in the UK, various campaign groups (including ASH) are calling for selling restrictions similar to those in place for cigarettes.

The key difference between an e-cigarette and the real thing is that the e-cigarette poses no risk to others in the vicinity. It doesn't pump smoke, tar, or carbon monoxide into the atmosphere. The only person who might be harmed is the person using it. On that basis, I'd argue that any regulation should be very light. Subject to the usual health and safety rules that you'd expect, there's no good reason for making it difficult to get hold of and "smoke" these devices.

Time to abolish "causing death by dangerous driving"

Lord Ahmed, the Labour peer serving 12 weeks for dangerous driving, will now be freed, after the Court of Appeal suspended his sentence. Ahmed was texting as he drove down the M1 on Christmas Day 2007, minutes before being involved in a fatal crash. The crash wasn't Ahmed's fault; it appears to have been a pure accident, entirely unrelated to the texting.

Of course, if the texting had been the actual cause of the crash, he could have been charged with one of two crimes: causing death by dangerous driving, or causing death by careless driving.

The latter offence is a relatively new one, introduced by the Road Safety Act 2006. Before the 2006 Act, the only "death by" motoring offence was death by dangerous driving. This led to problems when the defendant's driving was just careless, rather than dangerous. People whose loved ones died in those sorts of accidents felt that their loss wasn't recognised at all by the criminal justice system, which is why "death by careless" has now been introduced.

Much as I feel for people who lose family and friends in car accidents, I can't see a principled legal reason behind either of the "death by" offences. The crimes that they're based on (straightforward dangerous driving and careless driving) are so-called conduct crimes: that means that you don't have to do any actual damage to be guilty of them. Lord Ahmed's case is a good example - his texting didn't cause any harm, but he was guilty of driving dangerously all the same.

A crime like murder, on the other hand, is a result crime: to be guilty, you have to bring about a particular result, ie. someone's death.

The two "death by" driving offences are neither: they take a pure conduct crime like dangerous driving, and then tack a piece of result crime onto the end of it, which is a hopeless mishmash.

I would argue that it's wrong, in principle, to jail someone for bringing about a particular result unless they have some element of mental guilt related to that result. In other words, to be convicted of a crime that includes the words "causing death", you must either intend someone to die, or you must deliberately run the risk of someone dying.

We need to look at the reason why a person is culpable. If they're culpable simply because of the poor standard of their driving, then we should consider their level of car control, and nothing else. If they're culpable because of the result that they brought about, we need to look for intention or recklessness as to that result.

It's technically possible to charge four-wheeled killers with manslaughter - a proper result crime with a proper element of mental fault - but it only happens rarely. That's because juries are reluctant to convict bad drivers of such a serious-sounding crime, even if they're guilty on paper. The CPS almost invariably prefer to use the specific driving offences.

I've come to feel that there are two main reasons behind the "death by" offences: making it easier to convict people, and making the families of victims feel better. The first strikes me as downright unacceptable; the second, whilst it's important, is surely no excuse to cut corners with our principles. I'm sure this will go down like a lead balloon with car crash families, but I'd cheerfully abolish the two "death by" offences.

Just as an aside: why are we giving jail sentences to dangerous drivers, anyway? I wouldn't be scared to meet Lord Ahmed outside a pub on a Saturday night; what's the sense in locking him away at the taxpayer's expense? Surely a long-term driving ban, coupled with some community service (perhaps in a hospital A&E department) would be far more appropriate!