The failure by the Lord Advocate to adopt and publish a policy identifying the facts and circumstances which he will take into account in deciding whether or not to authorise the prosecution in Scotland of a person who assists another to commit suicide does not breach human rights law, appeal judges have ruled.
Judges of the Court of Session have refused an appeal by Gordon Ross in a petition for judicial review, in which he maintained that this failure or refusal was a breach of his right to respect for his private life under article 8 of the European Convention on Human Rights (ECHR).
The court agreed with the opinion of Lord Doherty dated 8 September 2015, and concluded that the interference with a person’s right to determine the manner of their death by criminalising individuals who assist in their suicide is “in accordance with the law”.
The issue raised in the appeal before Lord Justice Clerk Carloway, Lady Dorrian and Lord Drummond Young, was whether Lord Doherty was correct in finding that the interference is in accordance with the law in that it is both “accessible and foreseeable” in its application.
The petitioner, Gordon Ross, who died in January following the hearing of the appeal in December, claimed that the Prosecution Code published by the Lord Advocate was “insufficiently clear and precise to enable a person, who wishes to enlist the help of another in committing suicide, to foresee the consequences for that other person in terms of liability to prosecution; that for practical purposes this precludes either seeking or giving such assistance; and that this represents an unjustified interference with the ECHR Article 8 right to private life of the person wishing to commit suicide”.
Mr Ross submitted that the court should order the Lord Advocate to produce offence specific guidance, as the Director of Public Prosecutions (DPP) in England and Wales had been required to do following the 2010 case of R (Purdy) v DPP.
In England and Wales, a person who assists the suicide of another commits an offence in section 2 of the Suicide Act 1961, but this is not the law in Scotland.
Lord Doherty observed that the circumstances which led to the decision in Purdy were “quite different” from those existing in Scotland, including the fact that the English legislation criminalised conduct that could not be prosecuted under the law of homicide in Scotland.
Mr Ross had written to the Lord Advocate to request specific guidance on whether anyone who assisted him to commit suicide would be prosecuted and the Lord Advocate said that any incident involving a person who assisted another to take his own life would be reported to the procurator fiscal as a “deliberate killing” of another.
It was argued that the current policy meant that anyone who assisted Mr Ross to commit suicide would be liable to prosecution for murder or culpable homicide and therefore the Lord Advocate “unlawfully interfered” with the effective exercise of Mr Ross’s fundamental right.
It was submitted that the Prosecution Code was “indistinguishable” from the pre-Purdy position of the DPP, as it made no distinction between a situation where an act was motivated by the wish to assist someone who was terminally ill and any other homicide.
The Lord Advocate had to apply different criteria in the specific case of assisted suicide and in failing to do so, his policy was “disproportionate.”
However, the appeal judges ruled that the interference with the petitioner’s rights was in accordance with the law in terms of ECHR article 8.2 and that the reclaiming motion must be refused.
In a written opinion, Lord Carloway said: “The criminal law in relation to assisted suicide in Scotland is clear. It is not a crime ‘to assist’ another to commit suicide. However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death.
“Depending upon the nature of the act, the crime may be murder or culpable homicide. Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.
“In the same way, other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit.
“There is no difficulty in understanding these concepts in legal terms, even if, as is often the case in many areas of the law, there may be grey areas worthy of debate in unusual circumstances. There is no need for the respondent to set these concepts out in offence specific guidelines.”
He added: “The petitioner did not contend that the criminalisation of homicide lacked a legal basis in domestic law, or that the law in that respect was not sufficiently precise and accessible so as to enable a party to foresee the consequences of his actions and to allow him to regulate his conduct accordingly. The crux of the challenge was that the law was being applied by the respondent in a way which was arbitrary.
“There is simply no evidence to support that. The respondent has expressed his policy in a clear manner. He will prosecute cases which amount to homicide in the absence of exceptional circumstances. There is no evidence which undermines his public statements. It cannot be said that the respondent is exercising his discretion in a way which is arbitrary and does not meet the requirements of legality.”
Lady Dorrian also agreed with the Lord Ordinary that “the way in which the law operates in this field is not inaccessible, capricious or lacking in clarity, and that it meets the test for foreseeability”.
She stated: “It is not part of this court’s function in this reclaiming motion to seek to identify those acts assisting suicide which might constitute a crime in the law of Scotland and those which might not, whether murder, culpable homicide, or even culpable or reckless conduct.”
Lord Drummond Young observed that in relation to assisted suicide the Prosecution Code, which was supplemented by public statements by the Lord Advocate and Crown Office, indicated that if there is sufficient evidence “the normal course of action will be a prosecution”.
He explained: “The statements of policy make it clear that exceptional cases may exist where a prosecution will not be appropriate; in such cases the general discretion of the prosecution authority will be relevant. Nevertheless, it is apparent that the norm is to prosecute.
“It is of the nature of exceptional cases that they are hard to predict. To expect an enumeration of such cases would be wholly unreasonable. For this reason I am of the opinion that the Lord Advocate’s policy clearly meets the standard of reasonable certainty that is implicit in the requirement of legality in article 8(2).”
He added: “Assisted suicide is a subject that, on any view, raises profound moral issues. It also raises very strong feelings, both for and against. In such a case it is in my opinion wholly inappropriate for the courts to attempt any major change in the law.”