In Holyrood this week, another reminder that whether or not the parliament decides to adopt the late Margo MacDonald's controversial proposals definitively to legalise assisting suicide, the criminal law in this field is an unpredictable mess.
In contrast with the Justice Committee's sketchy summary, the SPICe briefing on the Bill gives you a much fuller, and indirectly more critical, account of the predicament Scots law finds itself in. Briefly to recap, no equivalent of the English Suicide Act 1961 applies in Scotland. There is no free-standing offence of assisting suicide here. Instead, assistance may, in some circumstances, be criminalised under the law of homicide. But what circumstances? There's the rub. We don't really know, and because of the absence of High Court cases giving definitive guidance on the applicability of the common law in these fields, we can't really know.
On Tuesday, the Health and Sport Committee began taking evidence from legal experts, including representatives of Police Scotland, the Crown Office, the Faculty, and my colleague Professor Alison Britton. The unpredictability of the law as it stands was brought out clearly in the witnesses' evidence. Labour MSP Rhoda Grant prodded the panel on the law as it stands. "Has anyone been prosecuted for knowing that someone else was about to commit suicide and, rather than assisting or encouraging the act, providing moral support or whatever?", she asked.
Summarising his understanding of the law now in force, Stephen McGowan from the Crown Office and Procurator Fiscal service commented:
"These cases are very fact sensitive. Under the current law, it depends on what precise action was taken to assist the suicide. Perhaps the key point is that consent is not a defence in terms of assault or homicide. Any act that has been taken to assist in the dying process can be looked at in the context of the law of homicide as a whole.
Because a person cannot consent to die in that way under the current law, if someone assists that, that potentially becomes homicide. However, it is difficult to come up with a precise rule, because the cases are all very fact sensitive. It depends on the circumstances of each case, what the condition is, what level of understanding the person who died had, and the intention of the person who assisted."
Respectfully to Mr McGowan, I think he must be conflating two distinct issues in this answer. To my ear, this sounds like an explanation of the PF's decision-making about whether or not to prosecute a particular individual. That is, to some extent at least, distinct from the more elemental question of whether or not homicide has been committed. Prosecutors can only haul you before the courts if they can hang their case on a relevant statutory or common law crime, but several other factors influence their decision to do so too.
Is the evidence in support of the charge sufficiently credible and reliable? Would the prosecution be in the public interest? The Crown Office may decide, for example, that prosecuting a particular mercy killer would not be in the public interest. But that doesn't mean that the killing wasn't illegal, wasn't murder or culpable homicide. The issues are distinct. And the Crown's understanding of the scope of the law of homicide remains as unhappily foggy as ever. The point was underlined when Patrick Harvie got a look in, responding to some criticisms of the lack of clarity of the draft legislation. In echo of a few of the grouchy questions posed on this blog last week, Harvie asked him about the "open, undefined legislative framework" of the law in force today:
"A paper from the office of the solicitor to the Scottish Parliament has been circulated to members. It outlines the current context, which is different from that for the Assisted Dying Bill, which amends the Suicide Act 1961. The paper says: “In Scotland, an individual” assisting a suicide could “be prosecuted under the common law for murder or culpable homicide, or some lesser offence such as culpable and reckless conduct.”
For example, someone might take steps to ensure that someone who they care for has access to the means to end their own life in the room where they are being cared for, might prop the person up in bed when they take the action to end their life or might simply make practical arrangements for the person to travel to Geneva and end their life in that way. At present, all those scenarios give rise to a great lack of clarity about what offences might be prosecuted and under what circumstances.
Is the position that we are in not the most open and ill-defined legislative framework that we could possibly have in the policy area? Is an attempt to outline a process that would be protected from those forms of prosecution not a positive step that increases the clarity that is available to people?"
McGowan responded that he couldn't really reply to any of these particular queries- because the impending judicial review launched by Gordon Ross "tied his hands". While you can understand this response to some extent - Harvie was merely soliciting comment, in parliament, on the public prosecution service's understanding of the criminal law as it currently stands in Scotland. Even taking into account the Crown's limited range of action because of Mr Ross' judicial review petition, I find it remarkable that no comment on these essential issues was forthcoming. Glasgow Caledonian University Professor Britton stepped in to provide some informed commentary which only underlines the point Harvie - and this blog - has repeatedly made:
Professor Britton: "Perhaps I can help a little. What you said, Mr Harvie, has some resonance. Prior to recent events and the current judicial review, the reply to that was that the law in Scotland was absolutely clear that assisting in the death of another person would incur some form of investigation and possibly some sanction. As you know, the position in England was subject to similar consideration, and the Director of Public Prosecutions issued guidelines following the case involving Ms Purdy.
That has not yet happened in Scotland so, at the moment, we rely on existing law, which—the argument is—is clear. England has tried to be a bit more specific but there is clearly a limit to how specific any rules or guidelines can be, because we would be usurping the role of Parliament. Therefore, I acknowledge that this might be the time for a challenge."
Patrick Harvie: "Is the current law in Scotland clear about whether someone who made all the practical arrangements for someone else to travel to Geneva, travelled with them and ensured that they were able to go through the process would be subject to prosecution?"
Professor Britton: "We have not had sufficient case law in Scotland to be able to answer that."
Patrick Harvie: "Exactly."
Exactly, indeed. If I fill a syringe with a lethal cocktail of drugs, and inject you with it - even with your consent - that's clearly homicide and exposes me to the risk of a life sentence. But what if I assemble pills for you in large quantity, at your urging? What if I pass you a glass of water to wash them down, and sit with you when they take effect and stop your heart? What if I help you onto a plane to Switzerland to terminate your life there, legally? The technical answer to all three is -- it depends on the mercurial doctrine of causation, the finnicky detail of which need not detain us here.
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. Whether or not Margo's last Bill finds its way onto the statute book, the Scottish Parliament must act to remove the Damoclean sword which unjustly hangs over too many people, trying to do the right thing, to live compassionately according to their lights, and to live within the law.