The issue of the guidelines on the prosecution of persons accused of assisting suicide has come before the courts again, this time in Scotland.

The issue before the Outer House

In Ross (Re Judicial Review) [2015] CSOH 123 the petitioner was a 65-year-old man in very poor health. He averred that the Lord Advocate’s Prosecution Code was

“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.”

He therefore sought:

(a) declarator that the Lord Advocate was in breach of Article 8 ECHR (private and family life) “in failing to promulgate a policy identifying the facts and circumstances which he will take into account in deciding whether or not to authorise the prosecution in Scotland of a person who helps another person to commit suicide”;

(b) an order requiring the Lord Advocate to promulgate such a policy; and

(c) such further order or orders as might seem to the court to be just and reasonable.

In short, he averred that

“The factors set out in the Prosecution Code, necessarily expressed in very general terms, wholly fail to satisfy the convention requirements of foreseeability and accessibility. It follows that the interference with the Petitioner’s rights under Article 8(1) cannot properly be described as being ‘in accordance with the law’ as required by Article 8(2).”

Decision and reasons

The Lord Ordinary [Doherty] was of opinion that it was unnecessary for present purposes to enter into a debate as to whether or not there was a Convention right to commit suicide or to be assisted to commit suicide. It was clear on the authorities that the Art 8.1 right to respect for private and family life encompassed respect for an individual’s decision as to how and when to die, and in particular to seek to avoid a distressing and undignified end to life provided that the decision was made freely. Art 8.1 was therefore engaged in the present case [30, 31].

As to the issue raised by the petition – whether the interference was “in accordance with the law” in terms of Art 8.2 – it was “very clear” that the petition did not “raise any issue as to the necessity of the existing law and practice in Scotland relating to homicide in cases of assisted suicide” [32]. There had been no failure by the Lord Advocate to justify the necessity of the interference. It was for the petitioner to raise the matter in the petition if he sought to plead it and he had not done so: moreover, “This is not legal formalism, nor is it a picky pleading point. It is about fair notice and the proper focusing of the challenge being made” [32]. The petition had given no indication that the necessity of the law was being questioned: rather, the petitioner’s Statement XXIII made it perfectly clear that it was the legality of the interference that was being attacked [32]. Nor had leave been sought to amend the petition [33].

Lord Doherty recalled two well‑established propositions:

“First, while the court can review the legality of the respondent’s policy it is not the court’s role to dictate the policy’s content … Second, 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 [34].

The present case was not on all fours with R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 nor did the outcome have to be the same [36], for three reasons:

• First, s 2(1) of the Suicide Act 1961 had a wide ambit and there were likely to be many situations where encouraging or assisting suicide in England and Wales would contravene s 2(1) but would not be homicide in Scotland (because one or more of the requisites of the crime of murder or culpable homicide was lacking) [37];

• Secondly, in Purdy there was a marked inconsistency between the law and its application in practice; but it had not been demonstrated that there was any similar divergence in Scotland between the law and its practical application, or that an unknown or unpublished policy was being applied [38];

• Thirdly, in Purdy (and in his written explanation of why he did not prosecute in the case of Daniel James) the DPP had accepted that many of the factors set out in the Code for Crown Prosecutors had little or no relevance to the decision whether or not a prosecution for a contravention of s 2(1) Suicide Act 1961 was in the public interest. In Scotland, however, the Lord Advocate “does not distance himself from the factors set out in the Prosecution Code. On the contrary, he has identified the factor in the Code which is likely to prevail in cases where there is a sufficiency of evidence – that the serious nature of the offence makes it likely that the public interest will require a prosecution” [39].

As to the requirements of accessibility, foreseeability and of non-arbitrary interference:

• It was not suggested that the relevant substantive law was inaccessible and he was not persuaded that the Lord Advocate’s policy failed in that respect: unlike the situation in Purdy, there was no indication of any divergence between the law and the practice; and there was no basis for concluding that a decision to prosecute would be likely to turn upon unpublished policy factors [41];

• He was satisfied that the foreseeability requirement was met [42]; and

• The proportionality of an interference was a matter that fell to be determined when assessing whether the interference is “necessary in a democratic society” [43]; and there was no evidence of arbitrary or inconsistency on the part of the Lord Advocate: “The thrust of his policy in this area is to enforce the law. The policy is consonant with the rule of law. The public know what his policy is, and there is no suggestion that it is being applied inconsistently” [44].

Lord Doherty concluded by recording that counsel for the petitioner had tentatively suggested in his Note of Argument that there might be a complaint of indirect discrimination on grounds of ethnic or national origin, contrary to Article 14 ECHR, because of the different prosecution policies in Scotland and in England and Wales; but since that argument had not been developed he thought it unnecessary to refer to it further [47].

Petition dismissed.

UKHRB has now posted a more discursive piece on the case by a proper Scots lawyer (which I’m not): Challenge to prosecution policy on assisted suicide in Scotland fails