My gast is flabbered. This afternoon, Holyrood's Justice Committee has reported on the late Margo MacDonald's draft assisted suicide legislation. Since Margo's death, the Bill is being shepherded through the Scottish Parliament by Patrick Harvie. The Committee's report, reasonably enough, was intended to focus on the legal aspects of the proposal. Central to that enterprise, you might well think, would be to ascertain with some precision what is and is not currently illegal when it comes to assisting and facilitating acts of suicide in this country.
The English position is easily stated. The Suicide Act applies, which criminalises "aiding, abetting, counselling or procuring" the suicide of another person. If you prepare a lethal cocktail of drugs for your spouse in England, or help a friend to fly to the Dignitas clinic in Swizterland, you violate the law. But what of Scotland? Would I be at risk of prosecution if I prepared a fatal dose of drugs for a sick friend to administer to themselves? Might I face a homicide conviction, for ordering tickets for a terminally ill relative, accompanying them to a Swiss canton?
The Justice Committee, on the evidence of their own report, haven't really got the foggiest. But chin up. They don't seem particularly to care either. After all, it is only a fundamental question of human liberty. You'd want to leave that, as ambiguously defined as possible, for prosecutors to determine according to uncertain and inaccessible standards. Here's their amateur-hour summary of the current legal position in Scotland.
27. Suicide and attempted suicide are not in themselves illegal in Scotland. The decision on whether or not to prosecute is for the COPFS, taking into account the circumstances of the case, including whether prosecution would be in the public interest.
You'd think you wouldn't leap to questions of prosecution before you've actually established that the impugned behaviour is a criminal offence. Some forms of assistance may well amount to homicide -- but others, such as the examples given, fall well short of the common law offences of murder and culpable homicide. The Crown Office isn't a lawmaking body. Your apparent deference to prosecutorial judgement here is ridiculous, lazy and misplaced. You can't just ask Frank Mulholland what he thinks about it and wait for the Lord Advocate experimentally to indict some luckless assister under the common law. This isn't 1760. This is your responsibility.
But I digress. The report continues...
27. "The Policy Memorandum explains that “it is possible that a person who assists someone else to commit suicide would be prosecuted for homicide (i.e. murder or culpable homicide), or for some lesser offence (such as assault or culpable and reckless injury/behaviour), although the lack of relevant case-law makes it difficult to establish how likely this is to happen in any particular case”.
28. In England and Wales, assisting a suicide is a statutory offence under section 2 of the Suicide Act 1961. Decisions on prosecution are taken by the Director of Public Prosecutions (DPP). The law relating to the DPP’s role has been clarified by two high-profile cases. In the first, the case of Diane Pretty, the House of Lords upheld the DPP’s refusal to give an undertaking in advance not to prosecute Ms Pretty’s husband if he assisted her in ending her own life. In the second, the case of Debbie Purdy, the House of Lords ruled that the DPP’s refusal to issue guidance on whether Mr Purdy’s husband would face prosecution for helping her to travel to Switzerland to die, contravened the ECHR. Following this judgment, the DPP issued guidelines aimed at clarifying the approach to cases of encouraging or assisting a suicide. These guidelines do not have the force of law and have no direct bearing on cases in Scotland.
Brilliant. So the Justice Committee's summary of the Scottish legal position amounts to a big shrug about the complexity of the common law, cannot offer any clear guidance on what kinds of assisting behaviour may or may not be criminal under the law as it stands, and focuses almost entirely on explicitly irrelevant English material.
Christine Grahame may talk a good game, and make occasional noises about robust and independent-minded scrutiny of policy - but under her chairmanship, this committee has often as not produced a singularly undistinguished and unfocussed analysis of the justice issues placed before it. Today's facile report kicks off 2015, dismally on trend.