Carloway: clarity or confusion?

carlowayExitEuthanasia Blog has been receiving emails about eleven short words spoken by this man on 19 February this year.

“It is not a crime ‘to assist’ another to commit suicide.”


61-year-old Colin Sutherland was a graduate of Edinburgh University and was admitted to the Faculty of Advocates in 1977. His appointment as Lord President and Lord Justice General was announced on 18 December 2015. That makes him Scotland’s most senior judge.

Rather less eye-catching were the next few words which were:

“However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death.”

He then goes on to say that the crime may be treated as murder or culpable homicide depending on the individual circumstances of the case.

Lord Carloway is not only repeating the assertion of the Procurator Fiscal in the consultations over the failed Assisted Suicide bills brought by Margo Macdonald that “the law in Scotland is perfectly clear”: he is upholding the opinion of a previous court last year.

This was another “what if” question, trying to work out in advance if someone would be prosecuted if assisting a suicide in Scotland. A similar attempt in England resulted in the Director of Public Prosecutions issuing helpful guidelines on factors that would tend towards – or against – prosecution of cases.

But is the judgement helpful? On the face of it, yes. It seems a lot more clear-cut than in England and Wales. But it is only a formal opinion. It is not a judgment on a particular case, either actual or in the future. More than that, the opinion was basically to say whether the failure by the Lord Advocate to adopt and publish a policy identifying the facts and circumstances which he will take into account in deciding whether or not to authorise the prosecution in Scotland of a person who assists another to commit suicide breaches human rights law. The appeal judges, headed by Lord Carloway, decided it did not.

So that is the position: the Lord Advocate is not forced to publish guidance (as the Director of Public Prosecutions did in England). The law in Scotland is “perfectly clear.” (It could actually be argued that the  law in England & Wales was “perfectly clear” without the Guidelines, but now England & Wales has guidelines and Scotland still does not.

In England and Wales, “many factors are taken into consideration” and are enumerated. In Scotland, “many factors are taken into consideration” but are not enumerated.

As we read their Lordships comments, it would seem that they repeatedly come close to giving guidance only to throw it away again.

Mr Ross, a terminally ill man who has since died, had written to the Lord Advocate to request specific guidance on whether anyone who assisted him to commit suicide would be prosecuted. The Lord Advocate said that any incident involving a person who assisted another to take his own life would be reported to the procurator fiscal as a “deliberate killing” of another.

Said Lord Carloway: “Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.” He continued, ““… other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit.”

Lord Drummond: “The statements of policy make it clear that exceptional cases may exist where a prosecution will not be appropriate; in such cases the general discretion of the prosecution authority will be relevant. Nevertheless, it is apparent that the norm is to prosecute. … It is of the nature of exceptional cases that they are hard to predict.  To expect an enumeration of such cases would be wholly unreasonable. For this reason I am of the opinion that the Lord Advocate’s policy clearly meets the standard of reasonable certainty that is implicit in the requirement of legality”.

Some assisted suicide campaigners have hailed the opinion as a ‘victory’ and others as a ‘disappointment.’ Rather like asking if the glass is half full or half empty, Exit believes it is neither. (We have included the legal opinion in full, both in the footnotes to this Blog and in the right hand panel for reference, along with other legal instruments of interest.)


Further reading:
The Court Opinion in full
Report posted in Scottish Legal News
Gordon Ross case: BBC report

A quick note to Exit Members, our print subscribers:
The new magazine is a little late, due to computer problems…
but we are working on it! The new issue hopefully won’t be long!

Addendum. It is perhaps worth pointing out that Exit has never been of the opinion that such challenges were valid challenges in law. The opinion of Lord Carloway was perfectly correct in legal terms. For a fuller explanation, readers are referred to 6th Report, 2015 (Session 4): Stage 1 Report on Assisted Suicide (Scotland) Bill and the points on Assisted suicide and the existing law, paras 23-42 and the conclusions which follow them.

Exit takes the position that a challenge to change existing law should be made on the basis of exceptions to the rule of homicide. (See our draft bill template, prepared in association with Glasgow University.) Such a change would be a matter for Parliament, but the arguments put forward to the Scottish Parliament, in our opinion, have repeatedly been ill-conceived, resting on fallacious criticisms of the law as in the case recently before Lord Carloway and in the bills brought by MSP Margo MacDonald. It has been the case, for many years, that proposers of bills come to Exit after they have drafted their bills instead of beforehand. This puts Exit in a difficult position as we wish to support them in spirit but our advice at that stage would have to be “re-write them completely.”

For further information and resources on how Scotland and the UK handles cases of assisted suicide under existing law, please see the legal sections of our publications.

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