On 31 March, the Herald published a letter signed by 21 legal academics in Scotland (including me) arguing that the current debate on the Assisted Suicide (Scotland) Bill had drawn attention to an “alarming lack of clarity in Scots law”, accompanied by a front-page news report. This followed written evidence which Professor Pamela Ferguson and I had (separately) provided to the Health and Sport Committee about the lack of clarity in the current law.
This prompted a number of letters in response from those opposed to the Bill, followed by a further letter from me. In that rejoinder, I pointed out three specific respects in which the current law of homicide is unclear, particularly in its application to assisted suicide. First, it is not clear when a voluntary action by a person (e.g. taking drugs to end their life) breaks the chain of causation, so that a person who has facilitated their actions (e.g. by providing the drugs) cannot be guilty of homicide. Secondly, it is not clear to what extent the jurisdiction of the Scottish courts extends abroad where actions resulting in suicide originate in Scotland: if A assists B to travel from Scotland to Switzerland to commit suicide, is A liable to prosecution for homicide in Scotland? Thirdly, it has been acknowledged by Scotland’s most senior judge that the mental element in homicide is badly defined, by reference to “inconsistent and confused” principles.
This has now prompted a letter from the Lord Advocate to the Herald, taking issue with my rejoinder. The Lord Advocate writes:
[Professor Chalmers] asserts that the law of causation in Scotland is unclear and therefore the law relating to assisted suicide is unclear. This is not the case.
This is particularly striking. What I actually said was that there were three different points of uncertainty in the law of homicide which meant that the law relating to assisted suicide is unclear. My letter gave no priority to any one of those points over the others. The Lord Advocate, however, has chosen only to take issue with one of the three points. I do not know why he has chosen to mention only this point in particular.
He goes on to say the following:
The law relating to [causation] 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. Thereafter where there is sufficient credible and reliable evidence consideration would have to be given to whether prosecution is in the public interest. The criteria for deciding this is set out in the Scottish Prosecution code which is publicly available on the the Crown Office and Procurator Fiscal Service (COPFS) website. I would add the obvious point that given the seriousness of the crime of homicide – it is the most serious crime in the Law of Scotland – it is difficult to conceive of a case where it would not be in the public interest to take proceedings, but each case would be considered on its own facts and circumstances.
The position remains as before: the Lord Advocate is unwilling to publish prosecutorial guidance in respect of assisted suicide cases. (There is rather more that could be said about this letter, but it seems appropriate to focus on this issue for now.) As the multi-authored letter to the Herald with which this correspondence began made clear, this is despite “a clear ruling in England that human rights legislation requires prosecutors to issue guidance about the circumstances in which they will prosecute people who assist suicide”.
That decision, reached by the House of Lords in R (Purdy) v DPP  UKHL 45, held that the Director of Public Prosecutions should be required to “promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding” whether to consent to prosecutions for assisting suicide. The decision did not depend principally on Ms Purdy’s own position. Instead, it resulted from Lord Hope’s analysis of the DPP’s decision in the case of Daniel James the previous year. In that case, the DPP had – unusually – published a full account of his reasons for deciding not to consent to a prosecution for assisted suicide. In his introduction to a lengthy account of his reasoning, he summarised the facts of the case and his decision as follows:
Daniel was 23 years old at the time of his death. He had sustained a serious spinal injury in a rugby accident in March 2007, which resulted in him suffering from tetraplegia. Daniel travelled to Switzerland with his parents in order to end his life. He carried out his wishes at premises operated by the Dignitas organisation. The police have investigated the acts of Daniel’s parents and a family friend. I have concluded that there would be sufficient evidence to prosecute each of them for an offence of aiding and abetting Daniel’s suicide, contrary to section 2(1) Suicide Act 1961, but that, on the particular facts of this case, a prosecution would not be in the public interest.
Given the nature of the case, the DPP had found it very difficult to draw assistance from the factors set out in the Code for Crown Prosecutors in determining whether or not prosecution was in the public interest. (In its approach to this question. the Scottish Prosecution Code is broadly similar to the Code for Crown Prosecutors; there seems no reason to think it would offer a prosecutor any more guidance.) Before the House of Lords, it was argued that the publication of the decision in Daniel James’ case, together with changes as to the handling of such cases, meant that the legal position was now sufficiently clear to comply with the European Convention on Human Rights. Lord Hope rejected that argument, saying that:
…for anyone seeking to identify the factors that are likely to be taken into account in the case of a person with a severe and incurable disability who is likely to need assistance in travelling to a country where assisted suicide is lawful, these developments fall short of what is needed to satisfy the Convention tests of accessibility and foreseeability. The Director’s own analysis shows that, in a highly unusual and extremely sensitive case of this kind, the Code offers almost no guidance at all. The question whether a prosecution is in the public interest can only be answered by bringing into account factors that are not mentioned there.
How would Scots law apply to a case such as that of Daniel James? It would be clearly arguable (a) that the Scottish courts had jurisdiction over a course of conduct which commenced in Scotland, with a strong territorial link to this jurisdiction (Laird v HM Advocate 1985 JC 37) and that the actions of those who had assisted him with travel or provided other aid were a “significant contributory factor” in his death. (In England, the stress laid on free will by the House of Lords in R v Kennedy (No 2)  1 AC 269 would almost certainly mean that the causal chain would be regarded as broken by the deceased’s own actions, but Scots law does not recognise the clear principle laid down in Kennedy.) There would, therefore, be a stateable case of homicide. Matters might be different if the Lord Advocate had chosen to indicate that he does not believe that he has the ability to prosecute in cases where the death occurs abroad, but he has given no such indication, which would be difficult to do given the case law on jurisdiction (and the further complication of section 11 of the Criminal Procedure (Scotland) Act 1995). It will be recalled that jurisdiction is one of the two points in my rejoinder which the Lord Advocate’s letter does not address.
A stateable case having been established, consideration would then have to be given to whether prosecution was in the public interest. This leads us directly to the dilemma encountered by the Director of Public Prosecutions in the Daniel James case, as recognised by Lord Hope in Purdy: general prosecutorial criteria are of little or no use in such cases. And if they are of little or no use, an offence-specific policy is required in order to comply with the European Convention on Human Rights.
This does not mean that the current attempt to seek judicial review of the Lord Advocate’s position in respect of this matter will succeed. Much depends on the facts of that case (of which I know little) and it is always possible that the Scottish courts will not be persuaded by the reasoning of Lord Hope and the other members of the House of Lords in Purdy. Nevertheless, while I can understand and sympathise with the Lord Advocate’s unwillingness to become involved in such a difficult ethical issue, the continued insistence that the law is clear and that guidelines are not required remains entirely unconvincing.