Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

10 September 2015 by

Holyrood-GettyRoss, Re Judicial Review, [2015] 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

Factual Background

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.

Petitioner’s submissions

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, [2010] 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).

Respondent’s submissions

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:

[36]      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 [2015] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: