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Clarifying the Law on Assisted Suicide? Ross v Lord Advocate

Document Cited authorities 5 Cited in Related
Vincent
Author
Pages93-98
Date01 January 2017
Published date01 January 2017
DOI10.3366/elr.2017.0391

Gordon Ross, who died in January 2016,1 was a retired television producer who prior to his death resided in a care home, living with diabetes, heart problems, Parkinson's disease and peripheral neuropathy.2 In Ross v Lord Advocate, Lord Carloway outlined the dilemma which Mr Ross faced in the following terms:3

He anticipates that there will come a time when he will not wish to continue living, as he will find his infirmity and consequent dependence on others intolerable. He would require assistance to commit suicide because of his physical state. He is apprehensive that anyone who assisted him would be liable to prosecution. He considers that he may require to take action to end his life himself, sooner than he would otherwise wish to, in order to avoid living on in an undignified and distressing condition. This dilemma causes him uncertainty and anguish.

Mr Ross brought a petition for judicial review in the Court of Session, seeking inter alia a declarator that the Lord Advocate had breached article 8 of the ECHR by “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”.4 Superficially, Mr Ross's case looked like the Scottish equivalent of R (Purdy) v DPP,5 where Ms Purdy challenged the Director of Public Prosecution's failure to issue an equivalent policy in respect of England and Wales. But while Ms Purdy succeeded in her challenge, Mr Ross failed. Why THE DIFFERENCES BETWEEN <italic>PURDY</italic> AND <italic>ROSS</italic>

In Purdy, it was held that the possibility of a prosecution of Ms Purdy's husband, by constraining her decision on whether and how to end her life, could amount to an interference with her right to respect to private life under article 8(1) of the ECHR. As prosecution would be a matter of discretion, it was necessary for the scope of that discretion and the manner of its exercise to be clearly stated in order for any interference to be in accordance with the law, as required by article 8(2).6

The position of the Lord Advocate has consistently been to argue the requirement for an offence-specific policy identified in Purdy is contingent on particular features of English law and so has no applicability in Scotland. That can be seen both in the statement issued by the Lord Advocate shortly after Purdy,7 and in the arguments deployed in Ross itself.

There are two aspects to this argument, which might be described as empirical and doctrinal. The empirical aspect is that, in England and Wales, the need for offence-specific guidance had been very clearly demonstrated by the case of Daniel James, where the Director of Public Prosecutions admitted...

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