JUDGMENT
WOOLF J. read the following judgment.
In this case, Her majesty's Attorney-General applies by originating summons for declaratory relief that, in the circumstances specified by him, the distribution of a booklet entitled " A guide to self-deliverance," which is published by the executive committee of the Voluntary Euthanasia Society (which also used to be known as Exit), is unlawful as being either an offence or an attempted offence contrary to the provisions of section 2 (1) of the Suicide Act 1961.
That Act, by section 1, abrogated the rule of law whereby it was a crime for a person to commit suicide. Section 2 (1) provides:
"A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years."
The respondents to the summons, whose names were changed at the outset of the proceedings, are members of the executive committee of the society. The society is an unincorporated association of members. Its amended constitution recites the purposes for which the society was established. These are:
"(2) The society shall work for the legalisation of voluntary euthanasia and for the enactment and beneficial working of any other measure seeking to establish the right, within properly defined limits, to avoid suffering and to die peacefully. (3) The society shall publish and distribute a form of declaration enabling members and others to make known their wishes with regard to terminal and emergency treatment. (4) The society may take any other steps intended to promote a general acceptance and understanding of the principles of voluntary euthanasia. (5) The society may consider and evaluate questions relating to the avoidance of suffering and to peaceful death and may provide information and practical and other advice to members of mature years and reasonable length of membership (by, for example, publication and distribution of a pamphlet or booklet) as to how most appropriately a prolonged and painful death can be avoided, and a life can be ended painlessly by someone hopelessly and painfully ill who has decided to embark on self-deliverance. (6) The society may carry out research in relation to all the above purposes and apply funds accordingly."
The respondents dispute the claim for relief on two main grounds. First, it is said that this is not a case in which it would be proper for the court to exercise its jurisdiction to grant declaratory relief, since it is for the criminal courts and not this court to apply the criminal law and if the law is unclear, the proper body to clarify the law is Parliament and not the courts. Secondly, they, submit that the distribution of the booklet is not unlawful. The respondents go on to contend that if it is appropriate to grant declaratory relief, then a declaration should be granted that:
"No offence against section 2 of the Suicide Act is committed by publishing or supplying factual information about methods of committing suicide or arguments about the propriety of so doing, if its publisher or supplier (a) has no knowledge that the recipient has a present intention of committing suicide, or (b) lacks an intention to persuade a particular recipient to commit suicide, or (c) where the information or argument published is by its nature or by the circumstances attending its publication unlikely to precipitate suicidal attempts."
Before considering the issues between the parties, it is necessary for me to deal with the facts giving rise to the application in so far as they are established before me. The background to the publication of the booklet can be ascertained from a chronology which is set out in the booklet itself.
In July 1979 the then executive committee decided to ask the then 2,000 members whether they would appreciate a booklet describing how to end one's life. There was an overwhelming response in favour. In October 1979 a resolution was passed in favour of producing the booklet and thereafter the membership of the society increased rapidly by 1,000 a month. In June 1980 the committee obtained opinions from two different Queen's Counsel, who gave conflicting views as to the likelihood of prosecution. In July 1980 it was decided not to publish. In August 1980 the Scottish society decided to produce a booklet for its members. That booklet was published in September 1980 under the title "How to Die with Dignity." On October 18, 1980, when the membership of the society had increased to 10,000, an annual general meeting appointed a new committee pledged to publish the booklet.
On October 22, 1980, Dr. Scott, a retired doctor, brought proceedings in the High Court to restrain publication of the booklet and obtained an undertaking that it would not be published, the grounds of his application being that it was contrary to the constitution of the society to publish the booklet. In February 1981 the constitution was changed and, in March 1981 Dr. Scott withdrew his proceedings on the society paying his costs.
In June 1981 the booklet was first distributed. There has since been a considerable demand for the booklet. According to the respondents' evidence, by November 25, 1982 (that is in less than 18 months), 8,300 copies had been sold. This is despite the fact that the society has taken steps to limit the sales by charging #6 for each copy of the booklet and by limiting the sales to members of three months standing, aged 25 or over.
It is next necessary to consider the booklet itself. Before I do so, I should make the position of the court clear. I am, of course, aware of the serious debate as to whether or not voluntary euthanasia should be legalised. However, I am not in any way concerned with the morality of voluntary euthanasia or the morality of publishing and distributing a booklet of this sort. The court's sole concern is with the legal issues between the parties, to which I have already alluded and, in particular, to the lawfulness of distributing the booklet. Although that is the position of the court, justice requires that I should make it clear that there has been no suggestion made on behalf of the Attorney-General that if it is lawful to distribute a booklet of this nature, there is anything objectionable about the form or contents of this particular booklet. Indeed, having read the booklet more than once, it is manifest that no objection of that sort could be made. If it is appropriate to have distributed a booklet dealing with this subject, then this booklet provides a satisfactory treatment which it would not be easy to improve upon. As the extracts which I will quote will make clear, it could deter a would-be suicide, but it will, in many cases, assist them to commit suicide when they might not otherwise do so, and this should be apparent to any reasonably intelligent person who has read the booklet.
Since the conclusion of the evidence, I have been supplied with a supplement to the booklet which has not been published by the society. That supplement, supplied by Dr. Scott, confirms the views which I have just expressed.
On the inside page of the booklet there appears the statement:"Before considering self-deliverance; have you rung the Samaritans? Their number is in your local phone book."
The booklet commences with a preface by the late Arthur Koestler, to which I should refer because it indicates the reasons for publishing it. The preface begins:
"When people talk of `the fear of death,` they often fail to distinguish between two types of fear which may be combined in experience but are separate in origin. One is the fear of the state of death (or nonexistence); the other the fear of the process of dying, the agony of the transition to that state. The aim of this booklet - and of the society which, after much soul-searching, decided to publish it - is to overcome the second of these fears."
Later, he said:
"If the agnostics among us could be assured of a gentle and easy way of dying, they would be much less afraid of being dead. This is not a logical attitude, but fear is not governed by logic."
There is then an introduction, which commences:
"The reasons for writing this pamphlet are quite simple. Those who join Exit do so because they believe that they have a right to a say in the manner and timing of their death, particularly if it seems likely that the process of dying will be a long one and distressing either to them or to their friends and families. For some the main fear will be of continuing pain, while for others the main fear is of paralysis of body or mind or simply weariness with a life that has deteriorated beyond repair."
The introduction goes on to say that:
"Exit receives frequent requests from members for advice about how they might most appropriately end their lives themselves if the need should arise. The main objectives of the society are to secure the enactment of the 1969 Voluntary Euthanasia Bill by Parliament. . . . Pending such legislation, we see no alternative to supplying on request the necessary information to bring about their own deliverance. Exit neither advocates nor deplores suicide. It has a neutral stance, and regards such decisions as matters of personal belief and judgment."
The introduction concludes by stating:
"The society certainly does not wish to encourage people to commit suicide, and in fact wishes to discourage people from killing themselves merely because of some personal crisis which will look a good deal less serious a few days or even a few hours later."
The booklet then deals with the question of suicide and Christianity, and gives assistance as to the forms of powers of attorney designed to avoid being given life sustaining treatment in circumstances "where they consider it better for their life to end."
The next two pages of the booklet are entitled "Why you should think again." There are then set out, under seven separate headings, reasons why the reader should indeed think again before seeking to take his own life. The next page is entitled "Before taking a final decision about seeking self-deliverance." There are then four numbered paragraphs, the first of which advises the reader "to consider over a substantial period - months if possible, rather than weeks - whether self-deliverance is the best way of dealing with your problems." The second asks the reader to consider "whether your problems could be overcome by seeking medical or other help, by changing your way of life," etc. The third paragraph warns that "no method of suicide is absolutely foolproof" and a failure could result in brain damage or damage to other organs. It points out that failed suicides are often handled unsympathetically. The final paragraph states that "of those who survive apparently serious suicide attempts ... a significant proportion find that they can cope with life after all."
The booklet then deals with "Care and distribution of this pamphlet," in these terms:
"In writing this pamphlet the readers we have had particularly in mind are those who might have wished to benefit from the provisions of the proposed 1969 Voluntary Euthanasia Bill. It is because we are anxious to discourage people from ending their lives without due thought and consideration of the alternatives that we have decided that this pamphlet should be available only to those who have been members of Exit for at least three months. We accept that it may, despite all precautions, occasionally come into the hands of potential impulsive suicides, but we feel that we have to set against that risk the very real misery experienced by a much larger number of people who are currently forced to suffer against their will, sometimes for long periods. Accordingly we urge those who request the pamphlet to consider the wishes of our membership in deciding how it should be stored. We recommend that they keep it in a secure place and that they do not show it to others. If they ever decide to end their lives, before doing so they should either destroy the booklet or, better, send it back to us."
The booklet then sets out certain general principles, among which are:
"Although this pamphlet is designed to reduce the incidence of unsuccessful attempts, it would be naive to think that it can prevent them entirely. . . . We imagine that those who contemplate using this pamphlet will wish to die in such a way that their discovery will cause the minimum of distress to their families and friends."
The booklet then turns to "How not to do it" and sets out five separate methods of "self-deliverance" in clear, straightforward and reasonably detailed terms. The booklet also contains a guide to sedative drugs, a list of references to other works, a passage dealing with coroners and inquests, a statement of the law and then it deals with the position of life assurance, medical research and transplants. Finally, there is a postscript by a Dr. Eliot Slater, which makes it clear that the writer believes it is the absolute right of every human being to choose to live or to choose to die.
I have dealt with the booklet in some detail because its contents are the most important evidence in the case and I consider it right to try and give an indication of the balanced nature of those contents. It is, however, not possible to obtain the full effect of the booklet from the passages cited. This can only be obtained by reading the booklet as a whole.
In his affidavit, filed on behalf of the respondents, Dr. Brewer argues that the ordinary reader would find the descriptions as to methods "off-putting in their nature and subject matter" and that the booklet, "by giving details of what it accurately terms `elaborate preparations,`" provides facts which dispel the emotion that suicide is an easy matter to accomplish. He disputes that the effect of the publication of the booklet is likely to encourage suicide and expresses the opinion that "it will not cause a significant increase in suicide or suicidal attempts." I emphasise the words "a significant increase in" because they were inserted in longhand, presumably by the doctor before he deposed the affidavit because he appreciated it would cause some increase. In my view, the doctor underestimates the effect of the booklet. He concludes his affidavit by saying:
"I conclude that there is no reason to suspect that receipt of the booklet will have the effect of persuading persons to take their own lives, or `ripping over the brink` those who are contemplating such a course . . . it is in the public interest to make it available in a responsible and balanced form to those adults prepared to take steps to obtain it."
The Attorney-General, by the evidence filed on his behalf, takes the opposite view. It is explained how the matter came to the attention of the authorities in consequence of the suicide, at Claridges Hotel, of Robert McLeod, who was only 22. This was on July 20, 1981, only shortly after the first distribution of the booklet, yet a copy was found in his room. There are exhibited various documents which were obtained from the society's London office. These and the other evidence make it clear that this highly intelligent young man was determined upon taking his own life and was convinced of his moral right to do so. Further inquiries were then made and it was ascertained from the various police forces that, over the period of approximately 18 months after the first distribution of the booklet, there were 15 cases of suicides linked to the booklet and 19 suicides where documents were found which showed that the deceased was a member of, or had corresponded with, the society. As is pointed out on behalf of the Attorney-General, there may be many other cases, particularly as members are invited in the booklet, if they decide to end their lives, before doing so either to destroy the booklet or send it back to the society.
Mr. Nursaw, the Attorney-General's legal secretary, explains in his affidavit why these proceedings were commenced, in the following manner:
"When Her Majesty's Attorney-General's attention was drawn to these cases the view was taken that the distribution of the booklet to Exit's subscribers constituted an offence under section 2 of the Suicide Act 1961. However, when this opinion was communicated to Exit in an attempt to bring the distribution to an end, the executive committee's solicitors disputed its correctness. . . . It is accepted that the members of that committee are respectable persons who chose to issue the booklet out of genuine and strongly-held beliefs and who would not follow a course of action which they know to be criminal. In view of the existence of a genuine dispute as to the precise ambit of the law it was considered desirable to seek a declaration from this honourable court to resolve that dispute quickly and authoritatively without exposing respectable people to prosecution for an offence carrying a maximum penalty of 14 years' imprisonment. Although initially it was envisaged that an injunction would be sought as well as a declaration, it has now been decided solely to seek declaratory relief at this stage. This decision has been taken in the light of the letter of May 7, 1982, and in the confident expectation and belief that should this honourable court uphold Her Majesty's Attorney-General's interpretation of the law all further publication and distribution of the booklet would cease immediately. Her Majesty's Attorney-General and the Director of Public Prosecutions have decided that it would not be right to bring criminal proceedings in respect of acts done by the defendants in distributing the booklet before the decision of this honourable court is made known."
Before I proceed to set out my conclusions as to the legal effect of the evidence, I should deal with the first ground of opposition raised by the respondents, since, if it would not be appropriate to grant declaratory relief, it would not be right for me to proceed further with my examination of the facts and the issues of law which arise from them.
The House of Lords has recently dealt with the question of the propriety of the civil courts granting declaratory relief in cases involving the criminal law in Imperial Tobacco Ltd. v. Attorney-General [1981] A. C. 718. In that case it was the company which sought the declaratory relief and the Attorney-General who opposed the grant of it. Before the matter came before the High Court, criminal proceedings had already been commenced. Giving the leading speech, Viscount Dilhorne said, at p. 742:
"My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started."
That there can be circumstances where it is appropriate to give declarator relief I accept. Indeed, in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A. C. 800, I gave such relief, and my decision to do so was not subject to criticism in either the Court of Appeal or the House of Lords. Furthermore, if it is open to a private individual, in exceptional circumstances, to obtain such relief, it is certainly open to the Attorney-General to do so, since his right to seek the assistance of the civil courts in upholding the criminal law has been fully recognised by the courts: see Attorney-General v. Bastow [1957] 1 Q. B. 514.
The position of the Attorney-General in this respect was also dealt with by the House of Lords in Gouriet v. Union of Post Office Workers [1978] A. C. 435. Lord Fraser of Tullybelton said, at p. 523:
"It seems to me entirely appropriate that responsibility for deciding whether to initiate preventive proceedings for injunction or declaration in the public interest should be vested in a public officer, and for historical reasons that officer is the Attorney-General. It is well established that he is not bound to prosecute in every case where there is sufficient evidence, but that when a question of public policy may be involved the Attorney-General has the duty of deciding whether prosecution would be in the public interest, see the statement by Sir Hartley Shawcross in 1951 quoted in Edwards on The Law Officers of the Crown, p. 223. It seems even more necessary that similar consideration should be given to the public interest before initiating preventive procedure for injunction or declaration."
There are, however, differences between this case and other cases where declaratory relief has been granted in aid of the criminal law. Declarations are being sought that certain conduct is criminal, not that certain conduct is not criminal. The declarations are addressed to future distributions of the booklet and it is a real possibility that if a declaration is granted, but despite this further distributions take place, there could be a criminal prosecution. This makes it particularly important that this court should bear in mind the danger of usurping the jurisdiction of the criminal courts.
In this connection, I do not accept in full the submission by counsel for the respondents that because the proceedings are brought by the Attorney-General, it will only be appropriate exceptionally to refuse declaratory relief. It is true, as he contends, that in effect the Attorney-General is in a position to obtain declarations as to the law from the Court of Appeal (Criminal Division) on an Attorney-General's reference. However, while the court's decision on such references frequently clarifies the law, the court does so in relation to specific facts which are before it, in exactly the same way as it would in the case of an ordinary appeal against conviction. Furthermore, if a court declares what conduct will be criminal, it may be performing exactly the task which the jury would have to perform at a criminal trial. However, if the court rules that conduct is not criminal, it is performing a similar function to the judge at a criminal trial who stops the case on a submission of no case to answer. While of course recognising the advantages of the application of the law being clear in relation to future conduct, it would only be proper to grant a declaration if it is clearly established that there is no risk of it treating conduct as criminal which is not clearly in contravention of the criminal law.
Adopting this standard, I consider it appropriate to proceed to consider whether, on the evidence which is before me, the Attorney-General has established that he is entitled to the declaratory relief which he seeks. A starting point of such consideration must be the terms of section 2(1) itself. The intent of the subsection is clear. Section 1 of the Act having abrogated the criminal responsibility of the suicide, section 2(1) retains the criminal liability of an accessory at or before the fact. The nature of that liability has, however, changed. From being a participant in an offence of another, the accessory becomes the principal offender. This has the result that to attempt to "aid, abet, counsel or procure the suicide of another, or an attempt by another to commit suicide" can be an offence even if the person concerned does not attempt to commit suicide: see Reg. v. McShane (1978) 66 Cr.App. R. 97 and section 3 of the Criminal Attempts Act 1981. This is of significance in relation to the present issues because if the distribution of the booklet amounts to an offence under section 2(1) when the person to whom the booklet is distributed commits suicide or attempts to commit suicide, then the distribution to that person, if there is no attempt to commit suicide, could be an attempt to commit an offence under section 2(1) in the appropriate circumstances.
This being the general effect of section 2(1), the issue can be confined to considering whether to distribute the booklet to someone who commits suicide or attempts to commit suicide makes the distributor "an accessory before the fact" to the suicide or attempted suicide, the position so far as the distributor is concerned being exactly the same as it would be if either suicide or attempted suicide was still a criminal offence.
Of the opening words of section 2(1), the words "aids, abets" are normally regarded as referring to an accessory at the fact, and the words "counsels or procures" to an accessory before the fact. However, it is not right to ignore the words "aids, abets" in considering whether a person is an accessory before the fact.
As is pointed out in Russell on Crime, 12th ed. (1964), p. 150, the conception of accessories before the fact is one of great antiquity and it cannot properly be understood without consideration of its history. Coke used both the word "aide" and the word "abetting" in dealing with accessories before the fact. Hale said in his Pleas of the Crown (1778 ed), p. 615: "An accessory before, is he, that being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony."
Therefore, in the ordinary case, in deciding whether or not an offence has been committed, it is preferable to consider the phrase "aids, abets, counsels or procures" as a whole. However, some of the previous decisions of the courts are explained by the fact that in the particular circumstances of that case, the court was considering only one part of the phrase.
The editor of Russell also provides assistance as to what is the "bare minimum" which is necessary to constitute a person an accessory before the fact. At p. 151, it is stated that
"the conduct of an alleged accessory should indicate (a) that he knew the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform" - and I would here add "or attempt to perform" - "the deed."
In relation to the first minimum requirement, those responsible for publishing the booklet, because of its terms, would almost certainly know that a significant number of those to whom the booklet was intended to be sent would be contemplating suicide. They would not know precisely when, where or by what means the suicide was to be effected, if it took place, but this does not mean they cannot be shown to be accessories. As Lord Parker C.J. said in Reg. v. Bainbridge [1960] 1 Q.B. 129, 134:
"if the principal does not totally and substantially vary the advice or the help and does not willfully and knowingly commit a different form of felony altogether, the man who has advised or helped, aided or abetted, will be guilty as an accessory before the fact."
As the judge had directed the jury in that case: "It must be proved he knew the type of crime which was in fact committed was intended."
In relation to the second requirement, if the recipients of the booklet attempted to commit or committed suicide, the contents of the booklet indicate that the publishers approved or assented to their doing so. To conclude otherwise is inconsistent with the whole object of the booklet, which is to assist those who feel it necessary to resort to self-deliverance.
I turn, therefore, to the final minimum requirement. I have no doubt that in the case at least of certain recipients of the booklet, its contents would encourage suicide. Ignorance as to how to commit suicide must by itself be a deterrent. Likewise, the risks inherent in an unsuccessful attempt must be a deterrent. The contents of the booklet provide information as to methods and methods which are less likely to result in an unsuccessful attempt. This assistance must encourage some readers to commit or attempt to commit suicide. This is clearly appreciated by the publishers, thus their care to control the persons to whom the booklet is to be sold and their advice as to the safe-keeping of the booklet.
I, therefore, have come clearly to the conclusion that there could be circumstances in which to supply the booklet could amount to an offence.
This conclusion is consistent with the decision of the Court of Appeal in Reg. v. Reed [1982] Crim. L. R. 819, of which case I have a transcript. That case concerned the former secretary of the society. He is now wholly disowned by the society, which disapproves of his conduct, that conduct having come to light as a result of his prosecution. Although he was convicted of offences under section 2 of the Act of 1961 and the Court of Appeal did not intervene, the decision of the court is of limited assistance because Reed's conduct went far beyond anything which is here being considered. The case against him was that he put his co-accused in touch with people so that the co-accused could actually assist them in committing suicide. As is stated in the transcript:
"there was no dispute that the conduct of Reed in putting Lyons in touch with would-be suicides . . . constituted taking the appropriate steps to produce a result. The issue and the only issue was what result was intended. Was it the bringing of comfort to the sufferer, as Reed contended, or was it the procuring of suicide, as the Crown contended?"
Some assistance is to be obtained from a New Zealand case, Rex v. Baker (1909) 28 N.Z.L.R. 536. In that case it was held that:
"Where one person writes a letter to another explaining how a crime of a particular nature may be committed, and the other person subsequently attempts to commit a crime of that nature, the writer of the letter is guilty of an attempt to commit that crime . . . even though when the letter was written no specific crime of that nature was in the contemplation of either of the parties."
However, that case has to be approached with caution as it has been the subject of considerable criticism by academic writers.
The fact that the supply of the booklet could be an offence does not mean that any particular supply is an offence. It must be remembered that the society is an unincorporated body and there can be no question of the society committing an offence. Before an offence under section 2 can be proved, it must be shown that the individual concerned "aided, abetted, counselled or procured" an attempt at suicide or a suicide and intended to do so by distributing the booklet. The intention of the individual will normally have to be inferred from facts surrounding the particular supply which he made. If, for example, before sending a copy of the booklet, a member of the society had written a letter, the contents of which were known to the person sending the booklet, which stated that the booklet was required because the member was intending to commit suicide, then, on those facts, I would conclude that an offence had been committed of at least an attempted offence contrary to section 2 of the Act. However, in the majority of cases, a member requesting the booklet will not make clear his intentions and the supply will be made without knowledge of whether the booklet is required for purposes of research, general information, or because suicide is contemplated. Is it, therefore, enough that in any particular case the person responsible for making the supply would appreciate that there is a real likelihood that the booklet is required by one of the substantial number of members of the society who will be contemplating suicide? It is as to this aspect of the case that there is the greatest difficulty and little assistance from the authorities.
Mr. Robertson, on behalf of the society, contends that before a person can be an accessory, there must be a consensus between the accessory and the principal, and there can be no consensus where the alleged accessory does not even know whether the principal is contemplating (in this case) suicide. As, however, is pointed out in Smith & Hogan, Criminal Law, 4th ed. (1978), while counselling implies consensus, procuring and aiding do not. The editors say at p. 116:
"the law probably is that: (i) `procuring` implies causation but not consensus (ii) `abetting` and `counselling` imply consensus but not causation and (iii) `aiding` requires actual assistance but neither consensus nor causation."
As a matter of principle, it seems to me that as long as there is the necessary intent to assist those who are contemplating suicide to commit suicide if they decide to do so, it does not matter that the supplier does not know the state of mind of the actual recipient. The requirement for the necessary intent explains why in those cases where, in the ordinary course of business, a person is responsible for distributing an article, appreciating that some individuals might use it for committing suicide, he is not guilty of an offence. In the ordinary way, such a distributor would have no intention to assist the act of suicide. An intention to assist need not, however, involve a desire that suicide should be committed or attempted.
In this connection, I must refer to Reg. v. Fretwell (1862) 9 Cox C.C. 152. In that case the Court of Criminal Appeal decided that the mere provision of the means of committing a crime is not sufficient to make the provider guilty as an accessory. In giving the judgment of the court, Erle C.J. said, at p. 154:
"In the present case the prisoner was unwilling that the deceased should take the poison; it was at her instigation and under the threat of self-destruction that he procured it and supplied it to her; but it was found that he did not administer it to her or cause her to take it. It would be consistent with the facts of the case that he hoped she would change her mind; and it might well be that the prisoner hoped and expected that she would not resort to it."
While I accept that this reasoning does not accord with mine, I do not regard the case as requiring me to come to a different conclusion from that which I have indicated. That case is inconsistent with National Coal Board v. Gamble [1959] 1 Q.B. 11, and I regard it as confined to its own facts, for the reasons indicated in Smith & Hogan, Criminal Law, pp. 120 and 121.
Counsel for the respondents points out, and this I accept, that in some cases the booklet, far from precipitating someone to commit suicide, might have the effect of deterring someone from committing suicide when they might otherwise have done so. In such circumstances, he submits, it would be quite nonsensical to regard the supply of the booklet as being an attempted offence contrary to section 2. I agree, though I recognise that on one approach the result would be different. The reason why I agree with the submission is because, in such a case, the booklet has not provided any assistance with a view to a contemplated suicide. Such assistance is necessary to establish the actus reus for even the attempted offence.
There will also be cases where, although the recipient commits or attempts to commit suicide, the booklet has nothing to do with the suicide or the attempted suicide; for example, a long period of time may have elapsed between the sending of the booklet and the attempt. In such a case, again, I would agree with counsel for the respondents that there would not be a sufficient connection between the attempted suicide and the supply of the booklet to make the supplier responsible. This does not mean that it has to be shown that the suicide or attempted suicide would not have occurred but for the booklet. However, if "procuring" alone is relied upon, this may be the case. As Lord Widgery C.J. stated in Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773, 779-780:
"To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening . . . You cannot procure an offence unless there is a causal link between what you do and the commission of the offence . . ."
However, you do not need to procure to be an accessory and the same close causal connection is not required when what is being done is the provision of assistance.
I therefore conclude that to distribute the booklet can be an offence. But, before an offence can be established to have been committed, it must at least be proved: (a) that the alleged offender had the necessary intent, that is, he intended the booklet to be used by someone contemplating suicide and intended that person would be assisted by the booklet's contents, or otherwise encouraged to attempt to take or to take his own life; (b) that while he still had that intention he distributed the booklet to such a person who read it; and, (c) in addition, if an offence under section 2 is to be proved, that such a person was assisted or encouraged by so reading the booklet to attempt to take or to take his own life, otherwise the alleged offender cannot be guilty of more than an attempt.
If these facts can be proved, then it does not make any difference that the person would have tried to commit suicide anyway. Nor does it make any difference, as the respondents contend, that the information contained in the booklet is already in the public domain. The distinguishing feature between an innocent and guilty distribution is that in the former case the distributor will not have the necessary intent, while in the latter case he will.
However, in each case it will be for a jury to decide whether the necessary facts are proved. If they are, then normally the offence will be made out. Nevertheless, even if they are proved, I am not prepared to say it is not possible for there to be some exceptional circumstance which means that an offence is not established.
The situations with which I have just sought to deal illustrate the problems in this case of granting any form of declaration to Her Majesty's Attorney-General. However, as I am clearly of the view that the supply of this booklet can amount to an offence contrary to section 2, if the recipient commits or attempts to commit suicide, there can be no question of the respondents being granted a declaration.
Recognising the difficulties created by the sort of situations to which I have referred, in the course of argument, counsel for the Attorney-General submitted alternative forms of declarations from those set out in the originating summons. However, despite his gallant efforts, he has failed so far to produce a declaration which would not have the effect of indicating an offence has been committed, when, in fact, no offence would be committed. Having examined the facts and the law, I am satisfied that there is no form of declaration that it would be appropriate to grant. That it is desirable for the law to be clarified I accept, but if there is to be any clarification as a result of the proceedings before this court, it must come not as a result of my granting a declaration, but from the limited assistance which I have been able to give in the course of this judgment. One happy consequence of this conclusion is that both parties will be at liberty to appeal and no doubt, as a result of such an appeal, all will be made clear. If it is not, only Parliament can provide the answer.
It remains for me to express my gratitude for the very considerable assistance which I have received from all counsel in this case. I am very grateful for the care and assistance with which they made their submissions.
ORDER
Declarations refused.
SOLICITORS
Solicitors: Treasury Solicitor; Calvert-Smith & Sutcliffe, Richmond.
http://www.swarb.co.uk/c/hl/ .html
Date: 15:20 16/08/2002
