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:
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.
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.
