The Inner House of the Court of Session has unanimously ruled that the refusal of the Lord Advocate to publish specific guidelines on the circumstances in which individuals would be prosecuted in instances of assisted suicide does not amount to a breach of Article 8 of the European Convention on Human Rights (ECHR). Under the current Scottish legislation assisted suicide is not, in itself, a criminal offence. However, assisting the suicide of another may result in liability for either murder or culpable homicide where the assistance is the “immediate and direct cause” of death. The Lord Advocate has additionally set out general, not offence specific, guidance on the factors that militate for and against prosecution. Furthermore, the Lord Advocate has stated that where there is sufficient evidence a homicide has occurred it would rarely be in the public interest not to prosecute.
The ruling follows a previous decision of the UK House of Lords in Purdy, which ruled that the refusal of the Director of Public Prosecutions (DPP) to publish clear guidelines on the circumstances that would give rise to prosecution under section 2(1) of the Suicide Act 1961, as amended by section 59(2) of the Coroners and Justice Act 2009, was a breach of the UK’s obligations under Article 8 of the ECHR. The Court determined that the prosecutorial code was not sufficiently precise and accessible to allow individuals to determine whether or not they would be prosecuted for assisted suicide. This in turn amounted to the interference being found to be not ‘’in accordance with law’’ as required by Article 8(2).
The Court distinguished from Purdy on three grounds. Firstly, the court drew attention to the fact that the underlying substantive law in Scotland was distinct from that of England and Wales. It was noted that the law in England and Wales in the (amended) Suicide Act was broader in scope than that in Scotland. As such, this meant that the English Act covered conduct that would not be criminal in Scotland. Furthermore, the Court found there was no evidence of a divergence, or “obvious gulf”, between the law and practice in Scotland as there was in England and Wales. Finally, attention was drawn to the fact that, 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 Court ruled that the law, encompassing the substantive law of homicide and the prosecution code, enabled individuals to foresee, with a degree that was reasonable in the circumstances, the consequences of a particular action.
While there was no direct challenge to the substantive criminal law, the Court also addressed the question as to if the law amounted to a disproportionate interference with the applicants rights under Article 8(1) of the ECHR. Lord Drummond Young, endorsing the remarks of Lord Sumption in Nicklinson, determined that the question of whether or not assisted suicide should be lawful was inherently a matter for Parliament. The Court observed that a failure to allow the legislature a wide margin of appreciation in this regard would be “an affront to the principle of democratic rule”.
Click here to read the Inner House of the Court of Session judgment in full.
Click here to read a previous Bulletin article on the Nicklinson case.