A disabled man has appealed to the Inner House of Scotland’s Court of Session in his latest attempt to force the publication of a prosecution policy in cases of assisted suicide.
Gordon Ross, who has Parkinson’s disease, took the action after the Outer House of the court ruled against him in September.
The challenge has parallels with the high profile case in England, which resulted in the Director of Public Prosecutions (DPP) publishing an assisted suicide prosecution policy for England and Wales.
In 2009, the House of Lords ruled that the DPP should publish guidelines to be used in assessing whether those assisting suicide should be prosecuted, following a legal challenge from assisted suicide campaigner Debbie Purdy.
Currently, no such guidelines are published in Scotland, a situation that the country’s highest prosecutor, the Lord Advocate, is seeking to maintain.
Although he currently has no plans to end his life, Mr Ross claims that the current situation threatens his human rights. He asserts that the uncertainty over whether prosecution would follow an assisted suicide would make it more difficult for him to receive help to kill himself, if his condition deteriorates.
‘Consonant with the rule of law’
Mr Ross sought a Judicial Review in May, following the overwhelming defeat of the Assisted Suicide Scotland Bill.
At the time, Gerry Moynihan QC, counsel for Scotland’s chief prosecutor, the Lord Advocate, rejected the call for publication of such a policy, saying:
"People are entitled to know the Lord Advocate's policy is he will prosecute...
"To say anything else is to give people a false expectation of immunity from prosecution. That is an illusion."
Mr Ross’ application for Judicial Review was rejected by the Court of Session’s Outer House in September.
Lord Doherty, in the judgment, declared the existing Crown policy to be lawful, saying:
"The policy is consonant with the rule of law. The public know what his policy is and there is no suggestion that that it is being applied inconsistently."
‘Discriminatory’
In response, Mr Ross has appealed the ruling to the Inner House of the Court of Session, maintaining the current state of affairs is discriminatory:
"I remain convinced that I am being unfairly discriminated against on account of my disability which is why I am appealing against that decision."
The appeal is being heard by a panel of three judges and is expected to last two days.
‘Protecting disabled people’
Andrea Williams, chief executive of Christian Concern, commented:
“Far from discriminating against those who are disabled, maintaining the Lord Advocate’s position to uphold the law as it stands in cases of assisted suicide protects disabled people.”
Legal challenge in England
In England and Wales, the DPP first published assisted suicide prosecution policy in 2010, following the Law Lords’ ruling.
The DPP ‘clarified’ the policy in an amendment to the guidelines made in October 2014, without public consultation.
Supported by the Christian Legal Centre, disability campaigners Merv and Nikki Kenward have mounted a legal challenge to the change, which they claim constitutes “liberalisation by the back-door” and “puts vulnerable people at risk from dodgy doctors.”
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