Right to die campaigner's challenge to Lord Advocate fails on appeal
A terminally ill man has failed to persuade appeal judges that the Lord Advocate's failure to state publicly what circumstances he would take into account in deciding whether to prosecute a person who assisted another to commit suicide, amounted to a breach of human rights law.
Gordon Ross's appeal was heard in December before Lord Justice Clerk Carloway, Lady Dorrian and Lord Drummond Young, before Mr Ross himself died in January. The court's decision was published today.
In a petition for judicial review Mr Ross maintained that the Lord Advocate's failure or refusal to adopt and publish a policy was a breach of his right to respect for his private life under article 8 of the European Convention on Human Rights.
The court agreed with the first instance judge, Lord Doherty, 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 was “in accordance with the law” and both “accessible and foreseeable” in its application.
It was argued for Mr Ross that the current policy of reporting to the procurator fiscal any instance of assisted suicide meant that anyone who assisted him would be liable to prosecution for murder or culpable homicide, and the Lord Advocate therefore “unlawfully interfered” with the effective exercise of his fundamental right. Different criteria had to be applied in cases of assisted suicide to other cases of homicide, and the court should order the Lord Advocate to produce offence-specific guidance, as the Director of Public Prosecutions (DPP) in England & Wales had been required to do following the 2010 case of R (Purdy) v DPP.
Lord Doherty considered that the decision in Purdy was given against a different background, including that the English legislation criminalising assisted suicide covered a wider range of conduct than the law of homicide in Scotland.
The appeal judges agreed, observing that in the Purdy case there had been "an obvious gulf between the law and practice", and ruling that the interference with Mr Ross’s rights was in accordance with the law in terms of article 8(2).
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.
As regards death by ingestion of a lethal substance, Lord Carloway stated that the administration of such a substance might amount to homicide, and supplying a lethal substance for immediate use "may conceivably fall into this category"; but "Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death."
He continued: “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.”
Lord Carloway 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 added: “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 continued: “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).”
The judge 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.”