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Gordon Ross v Lord Advocate [2016] CSIH 12

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Gordon Ross v Lord Advocate [2016] CSIH 12

22 February 2016

Gordon Ross v Lord Advocate [2016] CSIH 12

In judicial review proceedings, the petitioner sought declarator that the Lord Advocate was in breach of Article 8 ECHR in failing or refusing to publish specific guidance on the facts and circumstances which he would take into account in deciding whether to prosecute an individual who assists another to commit suicide.  The Lord Ordinary (Lord Doherty) refused the petition and, in its recent decision, the Inner House (the Lord Justice Clerk, Lady Dorrian and Lord Drummond Young) refused the reclaiming motion. 

The Court rejected the submission that there is uncertainty in the law in Scotland in relation to assisted suicide, noting “It is not a crime to assist another to commit suicide.  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 a person’s death. … Depending upon the nature of the act, the crime may be murder or culpable homicide.  Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case.”  The Court also considered the Lord Advocate’s statements of policy (the Prosecution Code and statements made to the Scottish Parliament), Lord Drummond Young observing that they “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. … To expect an enumeration of such cases would be wholly unreasonable.”

The Inner House was also firm in rejecting the argument that the decision of the Supreme Court in R (Purdy) v DPP [2010] 1AC 345 was relevant, noting several significant distinguishing features between the law and circumstances in Scotland and in England and Wales, and holding that it had no bearing on Scots law.

Further, Lord Drummond Young made certain observations that may have a more general application in respect of constitutional issues, in particular in relation to the inappropriateness of courts attempting major changes in the law when the legislature has rejected such changes.  He endorsed the views of the minority in the Supreme Court in R (Nicklinson) v Ministry of Justice [2014] 3 WLR 200 (Lords Clarke, Sumption, Reed and Hughes).

The Dean of Faculty (James Wolffe QC) and Morag Ross were instructed for the Lord Advocate.