The Scottish law of homicide: “clear and accessible”?

Today, the Herald published a letter signed by myself and 20 other Scottish legal academics, arguing that the law (and prosecution policy) on assisted suicide is shamefully unclear and in need of reform. We said, in part:

“The absence of either case law or legislative authority in Scotland means that the response to almost any question about the Scottish law applicable to assisted suicide must be only that prosecution is "possible" or "cannot be ruled out". This legal uncertainty is only made worse by the absence of any published prosecutorial guidance. 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, no such guidance has ever been issued in Scotland. And English law, at least, has in the Suicide Act 1961 a reasonably clear statement of the circumstances in which assisting suicide may amount to a criminal offence. Scots law lacks even that.”

The full letter can be read here, and the accompanying news report here.

The Herald asked Crown Office for a response, which was in the following terms:

“There is no such law in Scotland and anyone who assists someone to die will be dealt with under the law of homicide which is clear and accessible.”

The point about "no such law" appears to be a reference to the fact that Scots law has no specific law on suicide, as in England. A number of points can be made in reply to this remarkable statement.

• First, it misses the point. In R (Purdy) v DPP [2009] UKHL 45, Lord Hope said that article 8 of the ECHR required that the law be accessible and foreseeable. Where prosecutors have a discretion as to how to act, this does not violate article 8, because the criteria governing that exercise of discretion are set out in prosecution codes. But the criteria set out in the (English) Code for Crown Prosecutors were of little practical use in dealing with cases of assisted suicide, and so special guidance was needed. None of this had anything to do with the fact that English law applies a specific statute (the Suicide Act 1961) rather than the general law of homicide in cases of assisted suicide. It arises simply because the factual circumstances in which assisted suicide cases arise are very special and general prosecutorial guidance - such as that found in the Scottish Prosecution Code - is of very little use in dealing with such facts. The decisions of the European Court of Human Rights on which Lord Hope founded his decision on this point had themselves nothing to do with assisted suicide.
• Secondly, because Scots law has no equivalent of the Suicide Act 1961, the potential consequences for anyone who assists a suicide are more serious than in English law: they can be convicted of murder rather than “only” assisting a suicide. The Crown’s position appears to be that this increased seriousness justifies ignoring Purdy and refusing to issue guidance. That is untenable. (I first made this point five years ago: see “Assisted suicide: jurisdiction and discretion” (2010) 14 Edin LR 295.)
• Thirdly, is the law of homicide in Scotland “clear and accessible”? That seems unlikely. If Crown Office can point to any clear and accessible statement of the law, that would certainly be welcome. (I am confident that this will not happen.) Pamela Ferguson and I have already demonstrated, in written evidence to the Health and Sport Committee, how unclear the law of homicide is in its application to cases of assisted suicide. But you don’t have to take our word for it. Here’s what Lord Gill, now Scotland’s most senior judge, had to say about the law of homicide more generally in the 2011 case of Petto v HM Advocate [2011] HCJAC 78:

“Since this appeal can be decided on the narrow basis as to the meaning of intent in the clear-cut circumstances of the case, it is unnecessary for us to explore the greater profundities of the mental element in murder and culpable homicide in contemporary Scots law. The discussion of that subject in Gordon's Criminal Law (3rd ed, paras 23.10-23.22) should suffice to persuade any reader that the subject is in need of a thorough re-examination... I have the impression that other English-speaking jurisdictions may have attained greater maturity in their jurisprudence on this topic than Scotland has. In Scotland we have a definitional structure in which the mental element in homicide is defined with the use of terms such as wicked, evil, felonious, depraved and so on, which may impede rather than conduce to analytical accuracy... but we remain burdened by legal principles that were shaped largely in the days of the death penalty, that are inconsistent and confused and are not yet wholly free of doctrines of constructive malice.”

In Petto, Lord Gill had to address only one aspect of the law of homicide (the mental element). The lack of clarity only worsens when issues such as causation and jurisdiction, which further complicate cases of assisted suicide, are factored into the equation. The blithe “clear and accessible” statement from Crown Office, which runs directly contrary to well-known views expressed by Scotland’s most senior judge, is entirely unsustainable.