Lord advocate rebuts claims of ‘shameful lack of clarity’ on assisted suicide law

Responding to a letter published in the Herald, Frank Mulholland QC (pictured) said those who help people to die would, as the law stands, be prosecuted under homicide laws.

The recent letter signed by a number of legal academics stated: “A person dealing with this most troubling of ethical dilemmas must simply wait and see what the Lord Advocate chooses to do – and how the courts respond – after the fact. Individuals dealing with unbearably tragic circumstances deserve better than this. This shameful state of affairs should embarrass any legal system.”

Professor James Chalmers, of Glasgow University’s School of Law, helped to organise the letter.

He said not all signatories were in favour of legalising assisted suicide as proposed by the Assisted Suicide (Scotland) Bill which is being considered by the Scottish parliament.

Professor Chalmers said: “The Lord Advocate should have done something on this long ago.

“I can understand why he or she did not want to. Trying to come up with a publicly defensible statement is going to be a thankless task.”

He also said causation was unclear in Scots law and that, as such, identifying who caused a death in a case of assisted suicide, where, for example, a person supplied a pill and the other swallowed it, was not a straightforward matter.

However, Mr Mulholland has said the position is perfectly clear in Scots law.

He wrote: “Prof Chalmers raised the issue of causation. The law relating to this is clear.

“In order for there to be a sufficient causal connection for homicide the conduct must be a significant contributory factor to the death.

“A minimal or negligible contribution would not suffice.

“This clear test, which has persisted for many years, will be applied to the facts and circumstances of each case.”

The lord advocate added that a prosecution would be in the public interest where there was enough credible and reliable evidence and noted that the seriousness of homicide means “it is difficult to conceive of a case where it would not be in the public interest to take proceedings”.

He added: “But each case would be considered on its own facts and circumstances.”

Currently, the Crown faces a legal challenge from Gordon Ross, 65, who wants to know whether someone can assist his death without facing criminal charges and has vowed to take his case to the UK Supreme Court in order to establish prosecutorial guidelines.

Mr Mulholland stressed in his letter, however, that changes in the law are for the parliament and not the Crown Office to make.

He said: “In a democracy it is important that changes to the law of assisted suicide are decided by the Scottish Parliament and not by me in the issue of prosecutorial guidance.

“Prosecutorial guidance cannot change the law or remedy a defective law. That would be unconstitutional and an affront to the rule of law.

“If members of the public want the law of this country relating to assisted suicide changed they need to persuade a majority of MSPs to do this.”

Professor Chalmers previously gave examples of cases where drug dealers supplied substances to people who subsequently died as illustrating the lack of clarity on causation in Scotland.

He said either prosecutorial guidelines or the parliament must address the problem and noted the lord advocate has in the past issued guidance where the law is unclear.