One aspect of the debate surrounding the Assisted Suicide (Scotland) Bill, currently before the Scottish Parliament, is a lack of clarity over just what the law on assisted suicide presently is. In two blogposts, Andrew Tickell has noted how the Justice Commitee’s report on the Bill offered no more than “a big shrug about the complexity of the common law”, while subsequent evidence to the Health and Sport Committee similarly failed to offer any clarity.
Against that background, I received a request from the Health and Sport Committee a little under two weeks ago, asking whether I would be willing, by yesterday’s date, to answer a series of questions on the scope of Scots criminal law as it stands. I have done my best, but I doubt it will help the Committee much. The law is hopelessly unclear. But why? Here are the key problems.
- We don’t actually know whether suicide is a criminal offence in Scotland. It’s commonly asserted that it isn’t – the Justice Committee repeated this claim again in its report – but there’s no real basis for it. Scots lawyers sometimes seem to think that because suicide was clearly established as criminal in England before the Suicide Act 1961, and it never has been in Scotland, we must somehow be different. But that misunderstands how English law made the point clear: archaic rules about the forfeiture of a suicide’s goods and chattels, along with the system of coroners’ courts, meant that the issue was a real, practical one there in a way that it never could be in Scotland. In Scotland, there is – obviously – no prospect of prosecuting anyone who commits suicide. However, scrutiny of the older writers on criminal law reveals that they consistently thought suicide was criminal, just practically impossible to punish.
- You might ask: but surely if suicide were criminal, we would have seen prosecutions for attempted suicide? Well, no: prior to 1887, there was no established general theory of criminal attempts in Scots law, which would have hampered any attempt to prosecute. And it was fairly quickly established that breach of the peace could be used to prosecute anyone who attempted to commit suicide. Given that prosecutions in such cases were simply a convenient mechanism to allow the state to intervene where someone was clearly in need of assistance, the more minor the crime that could be charged, the better.
- Why does this matter? Well, if suicide is criminal, it probably follows that anyone who assists it is guilty “art and part” of murder (not unlike the English position before 1961). And the rules of art and part liability in Scots law are pretty broad, flexible, and not terribly clear.
- If suicide is not criminal, then a person who assists suicide is only going to be guilty of murder if they can be said to have caused the death of another person. (There are other requirements for guilt, of course, but causation is essential.) And here, the law is even less clear. Can one human being (A) ever be said to have caused the actions of another (B)? The Scottish courts had to address this question in MacAngus v HM Advocate; Kane v HM Advocate 2009 SLT 137. Where A supplied drugs to B (for “recreation”, if you like, rather than the purpose of suicide), and B voluntarily chose to take those drugs, and B died, did A cause B’s death? Or did B’s voluntary action break the chain of causation? The answer of the High Court to that second question? “Not necessarily.” So that’s not clear either.
- What if A assists B in travelling abroad to commit suicide? Would the Scottish courts have jurisdiction where the final act takes place abroad? Well, we don’t know the answer to that either. It’s certainly possible – Scots law requires only some degree of territorial connection to Scotland in order to assert jurisdiction over a criminal scheme – but the precise boundaries of what is required have never been fixed.
- And how will the Lord Advocate exercise his discretion over whether to prosecute (or whether to prosecute for culpable homicide rather than murder) in cases of assisted suicide? We don’t really know: there are no published guidelines. It’s difficult – indeed, given the decision of the House of Lords in R (Purdy) v DPP  1 AC 345, almost impossible – to see how this is compatible with the ECHR (for why, see an earlier article I wrote on the subject, which is freely available online: “Assisted suicide: jurisdiction and discretion” (2010) 14 Edin LR 295).
“The Scots law on assisting suicide is unclear, unpredictable and unable to give anything approaching definitive guidance to the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable. The fact that few people find themselves in courts facing charges is some practical comfort that the Crown are adopting an enlightened and compassionate policy here.
But in principle, the vagueness of the law, and the more or less complete lack of transparency from the Crown Office on its application, represents an unacceptable fudge the continuation of which can no longer be justified.”
And finally, here’s the fun part: after I submitted my answers to the Health and Sport Committee, I was advised that they’d also asked the same questions of Professor Pamela Ferguson. Assuming both responses are published on the Committee’s website shortly, I’m looking forward to having my homework marked.
Update (11/02/15): Both Professor Ferguson’s answers and mine have now been published on the Health and Sport Committee’s website.
Update 2 (21/02/17): It seems the link noted in the previous update no longer works. The same documents can be accessed here instead. A short article by me on Ross v Lord Advocate  CSIH 12, a decision which may be thought to clarify some of the issues raised above, is also available online.