30 September 2010

Holyrood wastes a golden opportunity...

The ad hoc End of Life Assistance Committee has chewed through its oral evidence-taking with astonishing alacrity. Embarking on the questioning of twelve panels of witnesses on the 7th of September, the tenth and eleventh groups appeared before tribunes this Tuesday, leaving only the Bill's sponsor, Margo MacDonald, to speak to the proposed assisted dying legislation in the twelfth and final session on the 5th of October. 

Last week, I was particularly interested in the ninth panel, consisting of representatives from a range of Scotland's religious groups and what their exchanges might tell us about religious belief's place in the spaces of the Scottish public sphere.

This week, my eye was caught by the tenth and eleventh sessions. In the first, the Lord Advocate Elish Angiolini was originally scheduled to appear, but in the event was replaced by the Solicitor General, Frank Mulholland. I'll be returning to the evidence on assisted suicide, disability and a life worth living - key issues for the eleventh panel in a later post. I've blogged before about the opacity of the Scots criminal law on assisting suicide. Despite fairly regular errors in the press, there is no "UK law" on the subject. In England and Wales, "assisting suicide" is a statutory offence, contained in a piece of legislation - the Suicide Act 1961 - which  does not extend to Scotland. There is no straightforward parallel offence in Scotland's Common Law, therefore one would be well advised to avoid claiming that "assisting suicide" is illegal in Scotland.

Rather, as the Solicitor General told MSPs, "the law of Scotland which covers this field is the law of homicide". The committee's convenor, Holy rood's doughty Captain Mainwaring , Ross Finnie opened the session by emphasising that Mulholland was in a position to set out "points of Scots Law important to have on the record". In the event, the session proved unilluminating, mostly due to the failure of committee members to ask pointed, clarifying questions about the Crown Office's understanding of the present legal position. The Solicitor General spoke to two distinct concerns - firstly, the Scots law of homicide - and secondly, the general process and values informing how Scottish prosecutors evaluate particular cases that come before them.

He spoke to the need for public interest, about mens rea, actus reus, the criminal mind and the criminal act. Like a lecturer in criminal law summarising doctrine for our goggling representatives, he delivered a deft but brief survey of the elements of the offence, including the doctrines of causation and concert, defences of provocation and so on. Here is where matters get a little murkier, and unfortunately no member strove to clarify the points of uncertainty or debateability.

Mulholland suggested that if you provide another person with a "deadly cocktail of drugs", without administering them to that individual, your conduct would be indictable as a culpable homicide, where that individual perishes. You cannot consent to your own death, the reasoning runs, and legal causation would not be broken. The death would be attributable to you. His argument on the basis of concert does seem somewhat problematic, primarily because suicide is not illegal. Is it terrifically plausible, on an art-and-part theory, that one can be illegally complicit in a basically legal act? 

We cannot be talking about bare assistance here - because as you'll recall that isn't criminalised in Scotland. What we're talking about is the law of homicide. If only one of the committee had spoken up, seizing the most obvious example of families and friends helping their loved ones to fly to a Dignitas clinic in Switzerland, there to end their existences. I'd have been deeply interested to hear whether the Solicitor General believes that by buying a one-way airline ticket and helping your associate to the airport in full knowledge of their intention to die at their ultimate destination, you commit culpable homicide for the purpose of Scots law. When the taxi driver asks "Off on your holidays are you?" and you tell him your real plans, does that make him your accomplice, under threat of legal sanction for his homicide? These, after all, are the sort of legal uncertainties which Margo's Bill might serve to clarify. For example, Liberal MSP Jammy Purvis was once quoted in the Scotsman claiming that: 

“It is technically illegal to assist someone who wishes to end their life. It is considered culpable homicide and anyone who tried to help someone go to a clinic in Switzerland or anywhere else where is it legal to make end-of-life choices could be convicted of the very serious criminal offence.”

I’d like him to cite some specific authority to support this claim, since as far as I’m aware there have never been any prosecutions for culpable homicide on this sort of fact-pattern. I'd have liked once of the Committee members to ask what the Solicitor General made of it. While some assisted suicides may amount to culpable homicides – that does not entail any correlative claims that all acts which would be illegal as assisting suicide under the 1961 Act will amount to culpable homicides in Scotland. Why should there be that identity? Isn’t it a bit strange, after all, that legislation was required to criminalise this in England, but in Scotland, we somehow, miraculously covered the selfsame conduct with a misty idea of culpable homicide? 

While I can see how facilitating someone’s plane travel may amount to assisting them to commit suicide, I experience more of a struggle to see, in isolation, how such conduct amounts to a culpable homicide. Such an interpretation strikes me as stretching the plasticity of the offence beyond reason and imputing causality in a most implausible fashion. A grave pity, then, nobody thought to ask Law Officers what their understanding of what criminal liability - if any - attaches to such conduct. Not least because I'm not terribly confident that Holyrood will pass Margo's Bill, while the Common Law offences of homicide will stay with us, and persist.

Unfortunately, the MSPs on the End of Life Assistance Committee really wasted this opportunity.


  1. Interesting points. If our good prosecutors were to seek to pursue a charge of culpable homicide where someone had assisted suicide, what would they have to prove? If the assistant (for want of a better title) was to pour the drugs cocktail down the victim's (for want of a better title) throat, would that be homicide? I'm assuming that shooting someone when they ask you would be homicide (vague memory of a case like that), I'm just wondering what the point is where it changes - must you commit the act that ends life? I haven't been following this debate very closely so may be a tad behind on the issues.

  2. Thanks for the questions, Calum. I'll try to keep my answer brief and cogent. For clarity, in Scotland the homicide offences are murder & culpable homicide. Although the doctrine is important to understand distinctions made - punishment seems to me to be at the heart of the issue. Murder entails a mandatory life sentence, while an accused convicted of culpable homicide is sentenced according to judicial discretion, in the facts and circumstances of the case.

    Turning to the specific situations you describe. Firstly, I administer lethal drugs to another person with the intention of bringing about their death. This is murder simpliciter, whatever the "victim" thought about it. Generally speaking, the law would distinguish between intention - to kill the victim - and motive - which in these circumstances could be to fulfil the "victim's" wishes to die. The same would go for opening fire on a willing victim. As Mulholland told MSPs this week, in law you cannot consent to an assault, nor escape a conviction for homicide simply because the dead person invited your intervention. That said, it is perfectly open to prosecutors to indict an accused in these circumstances for culpable homicide.

    Both these examples are very "directly" causal - and as you say - the difficult question is in shades of conduct which "contribute" to death in some respect, but perhaps don't immediately precipitate it. Here, we bump against the noted flexibility of Scots criminal law. Mulholland seemed to suggest, in his view, that handing your suicidal friend a needle containing a lethal dose might well leave you open to prosecution for culpable homicide. Quite what limits ought to be placed on this idea of causation - of the sort I mentioned above - are unclear. Hence why it seemed important for MSPs to ask the Solicitor-General what the Crown Office believe, particularly since flying to a Swiss Dignitas clinic is one of the most obvious forms of assisted dying about which there appear to be legal dubieties.

    I'm not an expert on the cases in this area and perhaps some friendly visiting reader might assist us further, without me shuffling off to the law reports for an hour or two.

  3. Cheers for that. It suggests (to me) that killing by by negligence or ommission isn't criminal - which I didn't know. That clashes a bit, I think, with the provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 which is an interesting wee issue (if I'm reading it correctly) although the issues are slightly different.

    The Dignitas point is edgy as you say; if placing the necessary drugs or similar within the operational sphere of a person wishing to commit suicide is a criminal act then it must equally be a criminal act to help them go to Switzerland for a similar purpose (I think I remember that the suspicious death of a Scot anywhere in the world can be reported to the authorities here to be treated as if it happened here). I'm not in favour of this Bill but the issues are engaging.

  4. Actually, in some circumstances, you are under a legal duty to take action and will be criminally liable if you fail to do so. For instance, generally speaking it isn't illegal to stand and watch someone drown, however, if your own child was in trouble, you'd be expected to do so. Its been a while since I made criminal law a focussed study, but negligence could get you in trouble too. I seem to recall one case where a stone was negligently thrown out of a window, only to pulp the skull of someone wandering below.

    Personally, I think the idea that helping someone get to the airport is a culpable homicide is palpably absurd, an attempt to criminalise "assisted suicide" by an extreme and unjustifiable interpretation of the Common Law.

    I just wish we knew what Mr Mulholland thinks.