Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson
10 September 2015
Ross, Re Judicial Review,  CSOH 123 – read judgment
The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.
by Fraser Simpson
The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.
In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide.
The Petitioner sought review of this decision to refuse to publish a detailed policy. He argued that the policy was an unjustified interference with his right to dignity under Article 8, ECHR. The fact that the current policy was imprecise and undetailed resulted in it being unable to satisfy the requirement for interferences to be “prescribed by law” under Article 8(2) – the so-called “legality requirement”. In support of his arguments, the Petitioner relied heavily on the case of R (Purdy) v. DPP,  1 AC 345 (available here) in which the Public Prosecutor for England and Wales was required to develop a specific code for prosecutions relating to assisted suicide (for more information on the subsequent code, see this previous UKHRB post).
The position of the Respondent was that his policy satisfied all the requirements of the legality test under Article 8(2). Further, despite the present petition and the case of Debbie Purdy seeking similar results, the case could offer little practical assistance due to a number of substantial differences in fact and circumstance.
Prior to any discussion of the Respondent’s policy, Lord Doherty was keen to emphasise the fact that this review was limited to the legality of the policy. It is not the role of the court to dictate what the content of that policy should be provided it satisfies the legality criteria of Article 8(2). Secondly, in considering the certainty required from a prosecutorial policy, it is important to note that the standard is not as high as regards rules or laws that actually create criminal offences. This lower standard would be of relevance to the foreseeability element of the legality test under Article 8(2).
Lord Doherty firstly found favour with the Respondent’s submissions regarding the factual irrelevance of Purdy. Firstly, he noted that the ambit of s.2, Suicide Act 1961 was much wider than the law of homicide in Scotland. Secondly, the DPP in Purdy had admitted to the application of a policy that resulted in non-prosecution of cases that appeared to fall within the assisted suicide provisions. However, this policy was not publicised. The discrepancies between the law in theory and practice, a significant factor in the Purdy decision, were not evident in this case. Finally, the DPP in Purdy had stated that the standard Code for Crown Prosecutors had little relevance to decisions relating to assisted suicide. The Lord Advocate, on the other hand, had not distanced himself from the Prosecution Code and had repeatedly reinforced its applicability and relevance.
Despite Purdy not offering much substantive assistance, the guidance of Lord Hope regarding the legality framework in Article 8(2) was of significant use to Lord Doherty:
 The petitioner relies heavily upon the decision and reasoning in Purdy. While I accept, of course, the general guidance given in that case as to the requirements of legality, I do not accept that the circumstances before me mirror those in Purdy. Nor do I accept that the outcome here must be the same. There are obvious differences between the two cases.
The issues of accessibility, foreseeability, and non-arbitrariness of the Respondent’s prosecution policy were considered in turn.
The requirement of accessibility mandates that an individual should have a reasonable indication of the rules that will apply in a specific case. With regards to assisted suicide, the Respondent has been clear that the law of homicide, and the COPFS Code, would be applied. Both of these sources of law and policy were publicly available. As a result, Lord Doherty considered that the accessibility requirement was satisfied.
The foreseeability requirements results in a need for individuals to be able to ascertain in advance the consequences that certain actions may have. Lord Doherty recognised that, as stated in Sunday Times v. United Kingdom, (1979) 2 EHRR 245, complete certainty as to the consequences of an action is unattainable. However, a sufficient degree of foreseeability that is reasonable in the circumstances is necessary to satisfy this aspect of the legality test. The Respondent’s consistent statements regarding the applicability of the law of homicide and the public interest pointing towards prosecution resulted in a reasonable level of foreseeability being achieved.
In moving away from Lord Hope’s formulation of the legality test in Purdy (where Lord Hope had provided a disproportionate application of the law as an example of arbitrariness at paragraph 40) Lord Doherty emphasised that arbitrariness was not to be confused with the proportionality test under another limb of Article 8(2). The arbitrariness aspect of the legality test protects from public officials acting “on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred” (Lord Sumption, in R (Nicklinson and anor) v. Ministry of Justice  AC 657 , at paragraphs 239-241. The Respondent’s behaviours did not suggest arbitrariness – he consistently applied the policy designed to govern the situation.
The petition was accordingly dismissed. The policy of the Lord Advocate satisfied all the legality requirements contained within Article 8(2).
In some regards, one could be left wanting more from the Petitioner’s arguments.
Firstly, the Petitioner appeared happy to accept the reassurances that instances of assisted suicide would always be dealt with under the law of homicide. However, commentators have previously considered the relevance of the common law charge of “reckless endangerment” in the instance that the individual assists the individual but may not participate in the final acts. The lack of consideration of such a potential charge was noted by Lord Doherty, but it was not raised by the Petitioner. Establishing that this charge may have been a viable alternative to homicide may have raised doubts as to the consequences of assisting suicide and therefore the foreseeability element of the legality criteria – a potential trick missed.
Secondly, the petition only considered whether the interference was “prescribed by law”. No substantial submissions were made regarding the necessity of the policy and prohibition of assisted suicide. This may not come as a surprise, however, considering previous comments of the judiciary that legalisation on such a practice is a matter for Parliament and the recent rejection of the Assisted Suicide (Scotland) Bill by the Scottish Parliament in May this year.
Despite the above potential arguments not being raised, the Petitioner did briefly raise one argument that was worthy of mention in the concluding remarks of Lord Doherty’s opinion. Counsel for the Petitioner had “tentatively suggested” that a complaint could be made in conjunction with Article 14 on the basis of discrimination on ethnic or national grounds due to the differing policies north and south of the border. However, when questioned further, counsel was quick to admit that this was “not a point he was particularly pushing”…
The Respondent has already indicated his disappointment with the decision and an intention to appeal all the way to the “highest legal authority”. Evidently, this shall not be the end of this case. Nor shall it be the end of similar end of life discussions. On Friday, Rob Marris’ Private Member’s Bill to legalise assisted suicide is set to be debated in the House of Commons.
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