Reclaiming Motion By Gordon Ross Against Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lady Dorrian,Lord Justice Clerk |
| Neutral Citation | [2016] CSIH 12 |
| Court | Court of Session |
| Published date | 19 February 2016 |
| Year | 2016 |
| Docket Number | P1036/14 |
| Date | 19 February 2016 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 12
P1036/14
Lord Justice Clerk
Lady Dorrian
Lord Drummond Young
OPINION OF LORD CARLOWAY,
the LORD JUSTICE CLERK
in the reclaiming motion
by
GORDON ROSS
Petitioner and Reclaimer;
against
LORD ADVOCATE
Respondent:
Act: O’Neill QC, McIntosh; Campbell & McCartney, Paisley
Alt: Dean of Faculty (Wolffe QC), Ross; Scottish Government Legal Directorate
19 February 2016
[1] This is a reclaiming motion (appeal) from a decision of the Lord Ordinary on a petition for judicial review of the respondent’s failure or refusal to publish specific guidance on the facts and circumstances which he would take into account in deciding whether to prosecute an individual who assists another to commit suicide. The petitioner maintains that this failure or refusal is a breach of his right to respect for his private life under Article 8 of the European Convention on Human Rights.
[2] Article 8 provides:
“Right to respect for private and family life
Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others. ”
The Article 8 right is a qualified one. The state may legitimately interfere with the general Article 8.1 right, if the interference is in accordance with the law and in furtherance of one of the specified aims. The petitioner avers that the respondent’s interference with his Article 8.1 right is not “in accordance with the law” under Article 8.2. The Lord Ordinary disagreed. The reclaiming motion addresses the issues of whether he was correct in doing so.
Background
[3] The petitioner is aged 65. He suffers from diabetes, heart problems, Parkinson’s disease, and peripheral neuropathy. He suffers episodes of shaking and muscle spasms many times each day. He cannot live independently. He resides in a care home. He requires assistance from others with all aspects of daily living. He is, however, mentally unimpaired. 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.
[4] There are some preliminary points of importance about the scope of the petition which the petitioner was keen to stress. First, it does not address the issue of “mercy killing” or euthanasia. It is restricted to acts of suicide which require some form of assistance from a third party. Secondly, it does not overtly seek a review of the substantive criminal law, being the common law of murder and culpable homicide. Thirdly, it does not seek to challenge the settled will of Parliament. On two recent occasions, the Scottish Parliament has considered whether to legalise assisted suicide. On both occasions the draft bill was defeated by a significant majority.
[5] It was accepted by both parties that Article 8.1 was engaged by the petitioner’s circumstances. The petitioner had a right to determine certain aspects of his private life, including the determination of the final moment of his life. That was not to say that the petitioner had a “right to suicide”. The petitioner’s right under Article 8.1 could be interfered with under Article 8.2, if the requirements of legality and legitimate aim were met. At the hearing before the Lord Ordinary, the petitioner had sought to raise, for the first time, an issue of whether the criminalisation of a person who assisted another to commit suicide was necessary in a democratic society. Prior to that, the focus in the petition, the notes of argument, and the oral submissions had been legality; ie whether the interference with the Article 8.1 right had been in accordance with the law. The petitioner did not revisit the point in the course of the appeal. In any event, it is well established that the interference did have a legitimate aim; viz. the protection of the vulnerable from undue influence, or other acts which could circumvent their will. It is a common thread running through the European Court jurisprudence (Pretty v UK (2002) 35 EHRR 1; Haas v Switzerland (2011) 53 EHRR 33; Koch v Germany (2013) 56 EHRR 6; Gross v Switzerland (2014) 58 EHRR 7; Nicklinson v United Kingdom (2015) 61 EHRR SE7) and that of the courts in the United Kingdom (R (Purdy) v DPP [2010] 1 AC 345; R (Nicklinson) v Ministry of Justice [2015] AC 657) that, not only is there a legitimate aim to the criminalisation, but also that it is a matter not for the courts but for the legislature to determine. In that regard, the legislature was afforded a wide margin of appreciation.
[6] The issue raised is simply whether the interference with the right to determine the manner of a person’s death, by criminalisation of persons assisting in his suicide, is in accordance with the law. The “law” in this context encompasses not only legislation, but also secondary sources, including guidance promulgated by the respondent, such as the Prosecution Code (infra).
The Prosecution Code
[7] The respondent has published guidance (the Prosecution Code), which is not offence specific, on the factors which favour, or militate against, prosecution. There is a two stage test. The first is the evidential stage. This concerns itself with the legal sufficiency of the evidence. The second is the public interest stage. This addresses whether, even if there is a sufficiency, it is in the public interest to prosecute. This involves the exercise of a discretion. The Code lists thirteen factors to take into account. These include the nature and gravity of the offence, the age and circumstances of the victim, the attitude of the victim, and the motive for the crime.
[8] In addition to the Code, the respondent has made public statements, specifically related to the prosecution of those who assist another to commit suicide. In particular, in his written response to the Justice Committee regarding the Assisted Suicide (Scotland) Bill, the Lord Advocate made it clear that, when there was a sufficiency of evidence that an individual had caused the death of another, it would be difficult to conceive of a situation in which it would not be in the public interest to prosecute, but each case would be considered on its own facts and circumstances (Written Submission to the Justice Committee).
Section 2 of the Suicide Act 1961
[9] The petitioner relied heavily on R (Purdy) v DPP [2010] 1 AC 345. In England and Wales, a person who assists the suicide of another commits a specific statutory offence set out in section 2 of the Suicide Act 1961. This provides that a person commits an offence if he does any act which encourages or assists the suicide of another person where that act was intended to have that effect. The offence is a broad one. It encompasses many acts which would not be considered to be a cause of death under the Scots law of homicide. The context of section 2 of the 1961 Act is important. It follows section 1, which decriminalised suicide, and hence attempts at suicide, in that jurisdiction.
[10] The claimant in Purdy had sought review of the refusal of the Director of Public Prosecutions to publish clear guidance on the facts and circumstances that would be taken into account in determining whether or not to prosecute an individual under section 2 of the 1961 Act, specifically by taking a person to a country where assisted suicide was lawful. It was held that: (i) the claimant’s Article 8.1 right was engaged, and (ii) the failure of the DPP to publish guidance was not an interference which was in accordance with the law in terms of Article 8.2. The Code for Crown Prosecutors was not sufficiently accessible and precise as to allow the assisting person to foresee whether or not he would be prosecuted.
DPP guidance
[11] The DPP published offence specific guidance (Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, February 2010) listing 16 factors in favour, and 6 factors against, prosecution. Whilst the guidance discusses the offence under section 2 of the 1961 Act, it does not mention any overlap with homicide in English law, beyond stating that, where the conduct goes beyond assistance and involves the taking of life (or an attempt to do so), the public interest factors may have to be re-evaluated differently in light of the overall criminal conduct (Policy (supra) para 48). Both the DPP guidance, and the ratio of the decision of Purdy, are silent on the extent to which the law of homicide in England should be subject to the same analysis as a section 2 offence.
Lord Ordinary’s decision
[12] The Lord Ordinary considered that it was clear that Article 8. 1 was engaged and that the right to respect for private life did encompass respect for an individual’s right to die, particularly to avoid an undignified and distressing death. The Lord Ordinary did not consider that it was necessary to determine whether there was a right to commit suicide, or to be assisted to commit suicide, under the Convention. The only question was whether the interference was in accordance with the law. The Lord Ordinary rejected a submission that necessity was in issue. The point had not been raised in the petition or in the written notes of...
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