Assisted dying challenge to Scots prosecution policy fails
An elderly man in poor health, who complained that the Lord Advocate's policy on prosecuting cases of assisted suicide was insufficiently clear and precise for him to know when someone might be at risk of prosecution for helping him to die, has lost a legal challenge in the Court of Session.
Lord Doherty refused a petition by Gordon Ross for judicial review which alleged a failure by the Lord Advocate to adopt and publish a policy identifying the facts and circumstances which he would take into account in deciding whether or not to authorise the prosecution in Scotland of a person who helps another to commit suicide.
Mr Ross, aged 65, stated that he suffered from health conditions including diabetes, heart problems and Parkinson's disease, was no longer able to live independently and had become dependent on other people for many ordinary functions such as geting in and out of bed and preparing food. His mental capacity was unimpaired. He anticipated that a point would come at which he would find his infirmity and dependence on others "intolerable", and would not wish to continue living beyond that point. However he would require assistance to commit suicide and was apprehensive that anybody who assisted him would risk criminal prosecution, therefore feared that he might be forced to commit suicide by his own hand sooner than he would otherwise have wished.
In correspondence the Crown Office & Procurator Fiscal Service had stated that it would consider the matter under the law of homicide and whether there was a direct causal link between the accused's actings and the death. Consideration would then be given as to whether prosecution was in the public interest, the criteria for which were set out in the COPFS Prosecution Code.
Mr Ross claimed that the code "“is 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 article 8 ECHR right to private life of the person wishing to commit suicide".
His counsel, Aidan O'Neill QC, argued that the Lord Advocate required to promulgate a more specific policy which was in accordance with the law. He did not challenge the law of homicide in this respect but maintained that the policy factors relating to the public interest were part of the “law” for Convention purposes, and in relation to assisted suicide did not satisfy the requirements of accessibility and foreseeability. As a result, the law was being applied in a way that was arbitrary.
Lord Doherty observed that the petition did not challenge the necessity for the law relating to homicide in cases of assisted suicide; if he had, the Lord Advocate's approach to the case would have been very different. Regarding policy, the court could review the legality of policy but not decide its content; and the certainty required of prosecutorial policy "is of a lesser, more indicative, order than the certainty required of provisions which create or identify criminal offences".
The case was very different to that of Debbie Purdy, relied on for Mr Ross: it concerned the Suicide Act and not common law homicide; the factors taken into account were not pubicly available; and many of the factors in the Code for Crown Prosecutors had little relevance to aplying the public interest in cases of assisted suicide. Here the Lord Advocate had made it clear that the serious nature of the offence made it likely that the public interest would require a prosecution.
In terms of the guidelines in the Purdy case, the relevant documents on policy had been sufficiently published to be accessible; the foreseeability requirement was met by the indication that the public interest would be likely to favour prosecution; and there was no evidence of arbitrary or inconsistent behaviour in applying the policy.
"In the result," Lord Doherty concluded, "I am satisfied that the respondent’s policy in relation to prosecution for homicide where the circumstances involve assisted suicide does not lack the requisite accessibility or foreseeability. Nor is it arbitrary. It satisfies all of the requirements of legality identified in Purdy and the other authorities discussed above. In my opinion it is not incumbent upon the respondent to do more than he has done. His policy is 'in accordance with the law'."