Appeal court admonishes husband for mercy killing of wife

A 67-year-old man who smothered his deeply-loved wife of 43 years after helping her take an overdose of pain medication, has had a prison sentence for culpable homicide quashed by the Criminal Appeal Court.

Lords Brodie and Turnbull agreed that it was excessive to impose a jail term of three years and four months on Ian Gordon, and substituted an admonition to avoid “putting tragedy upon tragedy”.

The appellant's wife Patricia suffered from chronic obstructive pulmonary disease. From April 2015 she showed signs of a further serious respiratory illness. She also had a longstanding condition of serious anxiety, particularly related to hospitals and medical treatment. In December 2015 a consultant suspected lung cancer but she could not cope with the thought of a formal diagnosis or further tests. By April 2016 she had considerable pain in her chest and lower back but declined hospital admission until the pain became too bad. After an overnight stay she requested and was allowed home. The following night was very bad and the next day she was in excruciating pain. Medication gave only very temporary relief. That night she decided to end her life by taking an overdose. The appellant brought the medication and helped her take it. In the early hours he phoned his two adult children to tell them their mother had “gone”, and when they arrived at the house he told them he would be going to jail. He said: “I could not see her in that pain.” He then called the police and admitted to them: “I put a pillow over her head to finish her off. We made a pact that I would help her out.” The level of drugs found in her system on post-mortem might have caused death in any event.

The appellant was charged with murder but at trial Crown counsel, after leading the appellant's daughter's evidence and considering it with a medical opinion that the appellant was suffering from depression, accepted a plea of culpable homicide.

Sentencing the appellant, the judge said that he had clearly understood what he was doing and had accepted the likely consequences.

Delivering the opinion of the appeal court, Lord Brodie noted that had the case been one of murder there would have been a substantial punishment part, even allowing for exceptional circumstances. Sentencing for culpable homicide was “much less structured”, and the best guidance was the English case of Webb (2011) which resulted on appeal in a suspended sentence.

Lord Brodie continued: “There are different views about the acceptability of what can be described as mercy killing, but until Parliament intervenes to change the law it is the duty of the court to make clear that it is unlawful. Among the ways of doing that is to impose a custodial sentence. However, in allowing a place for denunciation it is to be kept in mind that denunciation is merely one among a number of objectives in sentencing. Moreover it is an objective that can be achieved without necessarily imposing a custodial sentence.”

After observing that the trial judge had not given thought to the appellant's mental condition at the time, he stated: “The Dean of Faculty submitted that to say, as the trial judge had, that the starting point in the present was a sentence of imprisonment of five years was 'wrong' when one considered the cases of 'others who do bad things'. We agree.”

He concluded: “The Dean of Faculty invited us to ask ourselves the question: what is the good reason for this man to stay in jail? We see no good reason. The objectives of rehabilitation and individual deterrence have no application. Similarly, given the very particular circumstances of the present case, we see no requirement for general deterrence which has to be met. The appellant is not a risk to the public...

“It is in the public interest that all cases of homicide should be carefully investigated and, where there is sufficient available evidence, prosecuted at the appropriate level. However, that has been done. There is also a public interest in making clear what must be regarded as society’s disapproval of criminal conduct. That is what we have referred to as denunciation. However, we see that as having been achieved by this prosecution and the public recording of a guilty verdict. We see no benefit as accruing to the appellant from his continued incarceration. Rather, it can only add to his distress and that of his family, particularly his children...

“The Dean of Faculty referred to the imposition of a custodial sentence as 'putting tragedy upon tragedy'. We see the force of that observation.

“We shall accordingly quash the sentence imposed by the trial judge and substitute it with an admonition.”

Click here to view the opinion of the court.