Court of Session rejects challenge to prosecution policy on assisted suicide

22 February 2016 by Thomas Raine

Ross v Lord Advocate [2016] CSIH 12, 19^th February 2016 – read judgment  

The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).

Factual and Legal Background

The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute.

In England and Wales it is a criminal offence to assist the suicide of another under section 2(1) of the Suicide Act 1961, as amended by section 59(2) of the Coroners and Justice Act 2009. In 2009, the House of Lords ruled in Purdy that the refusal of the Director of Public Prosecutions (the equivalent of the Lord Advocate) to publish clear guidance on the circumstances that would give rise to a prosecution under section 2(1) amounted to a violation of Article 8 ECHR. Having found that Purdy’s Article 8(1) rights were engaged, the court concluded that the interference was not “in accordance with the law” as required by Article 8(2). The prosecutorial code was not sufficiently precise and accessible to allow individuals to foresee whether or not they would be prosecuted for assisted suicide.

In Scotland, there is no equivalent of section 2(1). Assisted suicide is not, in itself, a criminal offence. However, assisting the suicide of another may give rise to liability for either murder or culpable homicide where the assistance is the “immediate and direct cause” of death. The law in Scotland is therefore narrower than the law in England and Wales. Acts which would fall within the scope of section 2(1), such as ‘assisting’ the suicide of another by taking them to a clinic in Switzerland, would not be covered by Scots law as they would not be the immediate and direct cause of death. As well as the law on murder and culpable homicide, the Lord Advocate has set out general (i.e. not offence specific) guidance on the factors which militate for and against prosecution. These include the nature and gravity of the offence, the age and circumstances of the victim, the attitude of the victim, and the motive for the crime. Moreover, the Lord Advocate has stated that where there was sufficient evidence that a homicide had occurred it would rarely be in the public interest not to prosecute.

The Petitioner’s Argument

The petitioner relied heavily on Purdy, arguing that the court should follow the House of Lords and require the Lord Advocate to produce offence specific guidance. It was accepted that Article 8(1) encompassed the right to respect for the way in which, and when, an individual wished to end his own life. Any interference with that right had been “in accordance in the law”, meaning that it had to be sufficiently accessible and foreseeable. Prosecutorial discretion was not, in itself, inconsistent with the requirements of legality but the scope of that discretion and the manner in which it was exercised had to be clear. The prosecution code issued by the Lord Advocate was not sufficiently clear.

The Outer House Judgment

The Outer House rejected the petitioner’s argument (see Fraser’s summary here), with the Lord Ordinary distinguishing Purdy on three grounds. First, the scope of the law in England and Wales was broader than in Scotland, criminalising acts which could not be prosecuted under Scots law. Second, there was no evidence of any divergence between law and practice in Scotland. Thirdly, unlike the DPP, the Lord Advocate had not sought to distance himself from his guidance nor had he conceded that general guidance may be of little relevance to the specific act of assisted suicide.

 The Decision

The Inner House unanimously upheld the Lord Ordinary’s decision. Purdy was distinguishable from the present case for the reasons given by the judge. The underlying substantive criminal law in Scotland was different to that in England and Wales. The notion of ‘assisting’ another to commit suicide in the (amended) Suicide Act was broader than anything in Scots law and covered conduct which would not be criminal in Scotland, such as that anticipated by Debbie Purdy and her husband.

Furthermore, the DPP had consistently chosen not to prosecute those who had, on the face of it, committed an offence under section 2(1). There was an “obvious gulf” between law and practice and it was unclear exactly what factors the DPP was taking into account in deciding not to prosecute. No such gulf existed in Scotland. There were no examples before the court of cases with sufficient evidence in which the Lord Advocate had decided not to prosecute on public interest grounds.

The Lord Advocate’s prosecution code contained general guidance which allowed all relevant factors to be taken into account, including the attitude of the victim, motive, and other mitigating circumstances. The respondent had also gone further, stating that where there was sufficient evidence that a homicide had occurred, and in the absence of exceptional circumstances, there would be a prosecution. If the necessary elements for a crime of homicide were established, including a causal connection between the act in question and death, it was very likely that a prosecution would be brought. The law (encompassing the substantive law of homicide and the prosecution code) therefore enabled individuals to foresee, to a degree that was reasonable in the circumstances, the consequences of a particular action.

Ross did not involve a direct challenge to the substantive criminal law. Unlike the case of Nicklinson, it was not argued that the law amounted to a disproportionate interference with the petitioner’s rights under Article 8(1). Nonetheless, Lord Drummond Young took the opportunity to comment on Nicklinson and, in particular, endorse the remarks of Lords Sumption and Reed that the question of whether or not assisted suicide should be lawful was inherently a matter for Parliament (be it Westminster or Holyrood). Lord Drummond Young observed that a failure to allow the legislature a wide margin of appreciation would be “an affront to the principle of democratic rule.” As these remarks were unnecessary in the context of the case, it may be inferred that His Lordship was trying to send out a message that any substantive challenge to the law on the basis of Convention rights was unlikely to succeed. In May 2015, the Scottish Parliament comprehensively rejected a bill which sought to allow assisted suicide. All of this suggests that those who support a change in the law may have some time to wait.

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by Thomas Raine