From the opinion of Lord Doherty, handed down on 8 September (link):

(1) The petitioner [Gordon Ross] is aged 65 and in poor health. In this petition he avers (Stat III) that he suffers from diabetes, heart problems, Parkinson's Disease, and peripheral neuropathy; that he is no longer able to live independently, and that since 2014 he has required to reside in a care home; that he has become dependent upon others to help with many ordinary functions such as getting in and out of bed and preparing food; and that he can no longer walk or drive. The petition continues:

"Stat. V. The Petitioner's mental capacity is unimpaired. He has discussed with friends and relatives the possibility of committing suicide. He anticipates that a point will come at which he will find his infirmity and dependence on others intolerable. He would not wish to continue living beyond that point. He would, however, require assistance to commit suicide. He is apprehensive that anybody who assisted him to commit suicide would risk criminal prosecution.

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(3) By letter dated 30 July 2014 the petitioner's solicitors asked the Lord Advocate ("the respondent") whether guidance had been published on the prosecution of persons who assist individuals in Scotland to commit suicide; and, if not, whether he had any plans to publish such guidance. By letter dated 22 August 2014 the Crown Office and Procurator Fiscal Service ("COPFS") Head of Policy replied:

"…If someone assists another to take their own life, such cases would be reported to the procurator fiscal by the police as a deliberate killing of another and … it would be dealt with under the law of homicide. Under the law of homicide, consideration would be given as to whether there was sufficient evidence to establish that an offence had been committed, that the accused was the perpetrator and that the accused had the requisite mens rea (intention) to commit the offence.

In order to be satisfied that a crime had been committed, the Crown would have to consider that there was a direct causal link between the actings of the accused and the deceased's death. In other words, that it was a significant contributory factor to the death…

Thereafter consideration would have to be given as to whether prosecution is in the public interest. The criteria for deciding whether prosecution is in the public interest are set out in the COPFS Prosecution Code…

There is a high public interest in prosecuting all aspects of homicide where there is sufficient available evidence…"

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(6) In this petition for judicial review the petitioner avers (Stat I) that the Prosecution Code published by the respondent:

"is insufficiently clear and precise to enable a person, who wishes to enlist the help of another in committing suicide, to foresee the consequences for that other person in terms of liability to prosecution; that for practical purposes this precludes either seeking or giving such assistance; and that this represents an unjustified interference with the Article 8 ECHR right to private life of the person wishing to commit suicide."

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(5) In a chapter headed "Public Interest Considerations" the COPFS Prosecution Code states:

"…Assessment of the public interest often includes consideration of competing interests, including the interests of the victim, the accused and the wider community.

The factors which will require to be taken into account in assessing the public interest will vary according to the circumstances of each case.

The following factors may be relevant. Not all of them will apply in every case and the weight to be attached to any applicable factor will depend on the circumstances of each case.

The assessment of the public interest involves a careful consideration of all the factors relevant to a particular case.

(i) The nature and gravity of the offence

The nature of the offence will be a major consideration in the assessment of the public interest. In general, the more serious the offence the more likely it is that the public interest will require a prosecution. …

(ii) The impact of the offence on the victim and other witnesses…

(iii) The age, background and personal circumstances of the accused…

(iv) The age and personal circumstances of the victim and other witnesses…

(v) The attitude of the victim…

(vi) The motive for the crime…

(vii) The age of the offence…

(viii) Mitigating circumstances…

(ix) The effect of prosecution on the accused…

(x) The risk of further offending…

(xi) The availability of a more appropriate civil remedy…

(xi) Powers of the court…

(xiii) Public concern…"

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Decision and reasons

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(31) While parties are at odds as to whether it is accurate to say that there is a Convention right to commit suicide, or to be assisted to commit suicide, in my opinion it is unnecessary for present purposes to enter upon that debate...

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(44) The overriding objective of the legality principle is to guard against arbitrary executive behaviour (Nicklinson, per Lord Hughes at para 278). The essence of arbitrariness in this context is that:

"The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred." (per Lord Bingham in Gillan at para 34: see also Lord Judge CJ in Nicklinson at page 77, para 179).

I see no evidence of arbitrary or inconsistent behaviour on the part of the respondent. The thrust of his policy in this area is to enforce the law. The policy is consonant with the rule of law. The public know what his policy is, and there is no suggestion that it is being applied inconsistently (cf Nicklinson, per Lord Neuberger PSC at para 141). Adopting the language of Lord Judge CJ (Nicklinson, in the Court of Appeal, para 179), decisions whether to prosecute will not be based upon the respondent's ungoverned whim but will represent conscientious decisions made by him with reference to his policy.

(45) In the result I am satisfied that the respondent's policy in relation to prosecution for homicide where the circumstances involve assisted suicide does not lack the requisite accessibility or foreseeability. Nor is it arbitrary. It satisfies all of the requirements of legality identified in Purdy and the other authorities discussed above. In my opinion it is not incumbent upon the respondent to do more than he has done. His policy is "in accordance with the law".

The appellant, Gordon Ross, said of the decision:

I am bitterly disappointed by the decision today by Lord Doherty not to take the opportunity to clarify the current law on assisted suicide in Scotland... I would like to thank my legal team, as well as my family and friends for their steadfast support whilst my case has been heard. I will be consulting with all of them over the next few days but my current intention is to take this fight to the highest legal authority I can...

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