Judicial review of Lord Advocate’s policy on assisted suicide refused

Gordon Ross, 66, who suffers from Parkinson’s disease and is no longer able to live independently, sought judicial review of the Lord Advocate’s failure to adopt and publish a policy identifying the facts and circumstances he will take into account in deciding whether or not to authorise the prosecution of a person who helps another to commit suicide.

He claimed this amounted to a breach of his human rights, but a judge in the Court of Session ruled that the Lord Advocate’s approach to the prosecution of homicide cases that involve assisted suicide, which is set out in the Crown Office and Procurator Fiscal Service (COPFS) Prosecution Code, “satisfies all of the requirements of legality”.

Lord Doherty heard that in July 2014 the petitioner’s solicitors wrote to the respondent to ask whether guidance had been published on the prosecution of persons who assist individuals in Scotland to commit suicide and, if not, whether he had any plans to publish such guidance.

The COPFS head of policy replied, stating that “…If someone assists another to take their own life, such cases would be reported to the procurator fiscal by the police as a deliberate killing of another and…it would be dealt with under the law of homicide”.

It added that consideration would have to be given as to whether prosecution is in the “public interest” - the criteria for which are are set out in the COPFS Prosecution Code.

The letter further stated that there is a “high public interest in prosecuting all aspects of homicide where there is sufficient available evidence”.

However, the petitioner averred that the 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”.

He argued that this represented an “unjustified interference” with his right to private life of the person wishing to commit suicide and sought declarator that the respondent was in breach of Article 8 ECHR.

It was submitted 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 followed that the interference with the petitioner’s rights under Article 8(1) could not properly be described as being “in accordance with the law” as required by Article 8(2).

Lord Doherty observed that while the court could review the legality of the respondent’s policy, it was “not the court’s role to dictate the policy’s content”.

In any event, the judge concluded that the policy was “in accordance with the law”.

In a written opinion, Lord Doherty said: “For law to be adequately accessible the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. It was not suggested that the relevant substantive law here is inaccessible; and I am not persuaded that the respondent’s policy fails in that respect. The Prosecution Code and the respondent’s statements in relation to cases of homicide which involve assisted suicide are published documents.”

The requirement of foreseeability involves that the law should be “… formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty…”

The judge found that the foreseeability requirement was met, as the Lord Advocate had “made his position clear” to the petitioner and to the public at large, under reference to the Prosecution Code and his other public statements on the issue.

He added: “His declared stance is that, while in each case the whole facts and circumstances would have to be considered, the public interest is likely to favour prosecution given the serious nature of the crime. The likely consequences of committing homicide in order to assist someone to commit suicide are reasonably foreseeable.

“In the result I am satisfied that the respondent’s policy in relation to prosecution for homicide where the circumstances involve assisted suicide does not lack the requisite accessibility or foreseeability. Nor is it arbitrary.

“It satisfies all of the requirements of legality identified in Purdy and the other authorities discussed above. In my opinion it is not incumbent upon the respondent to do more than he has done. His policy is ‘in accordance with the law’.”

Responding to the rejection of his judicial review by Lord Doherty, Mr Ross said: “I am bitterly disappointed by the decision Lord Doherty not to take the opportunity to clarify the current law on assisted suicide in Scotland, described recently by 21 legal academics as ‘shameful’.

“I have no wish to end my own life and hope I never do reach that point.

“However, this decision will mean that, if someone has a degenerative condition which might lead them to one day lose the ability to take their own life, they may now choose to do so earlier whilst they still have the capacity rather than put a friend or family member at risk of prosecution by waiting until they might require assistance.”

“Far from reducing the tragic number of instances of suicide amongst those with terminal conditions, estimated at around one per week in Scotland, this decision could drive people in my position to end their own lives at the very time when they need all the support they can get to help them manage and cope with their condition.”

“I would like to thank my legal team, as well as my family and friends for their steadfast support whilst my case has been heard.

“I will be consulting with all of them over the next few days but my current intention is to take this fight to the highest legal authority I can in order to protect my own rights, the rights of those currently in similar circumstances, as well as any amongst us who might find themselves in such a position in the future.”