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Assisting suicide in Scotland - where does the law stand now?

Colin Gavaghan

For those involved with the right to die movement, the question of how the law will deal with those who help a loved one die is often of more than purely academic interest. Two recent trials - those of Paul Brady and David Hainsworth - have raised questions as to how prosecutors and courts in Scotland are likely to deal with cases such as these. An overview of how cases of this sort have been dealt with in the past seems to suggest a trend towards treating them in a more humane way. But it also suggests a worrying degree of uncertainty as to how future cases of this sort will be dealt with.

It is widely recognised that, on a range of subjects, the laws of Scotland differ, often quite significantly, from those of England. In the area of assisting suicide, however, there would appear to be some widespread misunderstanding as to the nature and extent of this divergence. In particular, it is often assumed that assisting a suicide is not an offence north of the border. Although the position is not as clear as that in England, where the nature of the offence is set out in statute, it is certainly the case that assisting, or attempting to assist, a suicide, does constitute a criminal offence. Precisely what charge will be brought, and the manner in which the courts will treat those convicted are, however, often difficult to predict.

It seems beyond dispute that by “the 13th century, suicide, at least in limited circumstances, had become a crime under English common law.”1 Viewed as “an offence against nature [and] . . . against God,” suicide was punishable by confiscation of property, refusal of burial in consecrated ground, and the rather bizarre practice of driving a stake through the heart of the deceased!

The recognition that “suicide laws produced little, if any, deterrent effect.”1 led ultimately to the Suicide Act of 1961. This brought an end to the criminalisation of suicide or attempted suicide. However, s.2.(1) of that Act states that assisting a suicide remains an offence, carrying a maximum penalty of 14 years. An attempt made in 1985 by Lord Jenkins to provide an exception to the s.2 offence if “the accused acted on behalf of the person who committed suicide and in so acting behaved reasonably and with compassion and in good faith” was defeated.

In Scotland, it would appear that attempting suicide was a crime at common law, at least until the 18th century. By the twentieth century, this crime had become entirely obsolete; neither committing nor attempting to commit suicide are in themselves punishable in Scots law. It has been suggested, however, that attempting suicide may be prosecuted as breach of the peace2, even where the act is carried out in a discreet and private setting.

The position with regard to assisting a suicide is not quite so clear. Whether any prosecution will be deemed to be in the public interest depends entirely on the opinion of the Lord Advocate - Scotland’s chief prosecutor - as does the precise nature of the charge. In theory, the assistant could be charged with murder. In her report compiled for VESS, solicitor Caryl Godwin explained that while it is “unlikely that euthanasia would lead to prosecution for murder where the motives were, clearly, purely altruistic . . . it is not legally impossible”2 . Indeed, it is worth noting that James Brady was originally charged with murder3. If convicted of murder, the assistant would face a mandatory sentence of life imprisonment.

In practice, though, the assistant is likely to be charged with culpable homicide. This leaves the matter of sentencing in the hands of the judge, a situation which has led to some unpredictability in sentencing. In 1980, 78 year old Robert Hunter, who had ended the life of his senile wife, was sentenced to two years imprisonment - a sentence which, Lord Cowie assured him, would have been harsher but for his age. At the other end of the spectrum, 1996 saw the complete admonishment of Paul Brady, despite his plea of guilty to the culpable homicide of his terminally ill brother3.

There is perhaps some suggestion that both prosecutors and the courts are coming to see cases such as these in a more sympathetic light. As well as the Brady case, the High Court recently neglected to imprison David Hainsworth, who had been charged with attempting to suffocate his 82 year old terminally ill father. (See article this issue). Once again, the prosecution, after initially charging Hainsworth with attempted murder, accepted his plea of guilty to a lesser offence. Yet neither the courts nor the Lord Advocate can themselves change the fact that assisting suicide remains a crime. Regular readers of the Newsletter will know that VESS hopes to bring an Assisted Suicide Bill before Parliament in the not too distant future. If successful, this will allow medical practitioners to assist in ending the lives of patients, provided certain strict criteria are fulfilled. This would not apply to the actions of Paul Brady or David Hainsworth, of course - for those who are not doctors, assisting suicide would remain a criminal offence. But if the incurably ill were able to call upon doctors to help them die, there would hopefully be no more need to place this burden upon anguished relatives, no more need to ask loved ones to gamble their freedom in what has become something of a legal lottery.

1 Sometimes A Small Victory, Sheila A M McLean and Alison Britton, 1996 p.9.

2 Caryl Godwin, “Voluntary Euthanasiaand the Law of Scotland”, 1983.

3 See January 1997 Newsletter.

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