R (on the application of Conway) v The Secretary of State for Justice [2018] WTLR 597

WTLR Issue: Summer 2018 #172

R (on the application of CONWAY)

V

THE SECRETARY OF STATE FOR JUSTICE

and

1. HUMANISTS UK

2. NOT DEAD YET (UK)

3. CNK ALLIANCE LTD

Analysis

The Appellant, Mr Conway, suffered from terminal motor neurone disease. He sought a declaration under s4 of the Human Rights Act 1998 that s2(1) of the Suicide Act 1961, which makes assisted suicide a criminal offence, disproportionate interferes with his right to respect for his private life under Art8 of the ECHR.

At first instance, Mr Conway put forward four main arguments:

1. The ‘blanket ban’ on the provision of assistance for suicide constituted an interference with his Art8(1) rights in a way which is disproportionate and incompatible with Art8(2).

2. Mr Conway proposed an alternative statutory scheme which would sufficiently protect the weak and vulnerable in society and thereby demonstrate that the blanket prohibition in s2(1) is an unnecessary and disproportionate interference with his Art8(1) rights. This scheme was materially similar to a number of bills which had been put before Parliament in recent years.

3. The s2(1) prohibition should be modified to allow individuals, who come within a category of individuals proposed under Mr Conway’s scheme, to be provided with assistance so as to be enabled to commit suicide by their own actions.

4. If the wording of s2(1) is clear in its meaning and effect so that no alternative interpretation can be given to it pursuant to s3 of the HRA, then the court should grant a declaration of incompatibility under s4 of the HRA.

Sales LJ, giving the decision of the Divisional Court, rejected the claim, and held as follows:

  1. i. If Mr Conway wished to die, he could lawfully act upon that wish by asking for life-preserving treatment to be removed.
  2. ii. As a result of the European Court of Human Rights’ decisions in Pretty and Nicklinson, the ECtHR would find the blanket prohibition in s2(1) involved no violation of Art8, and therefore the declaration of incompatibility sought by Mr Conway only concerned the domestic law.
  3. iii. The court was not bound by Pretty to dismiss Mr Conway’s claim. Similarly, it was not formally bound by Nicklinson to decide the present case in a particular way since the majority of the Supreme Court reached their decision in the context where it was known that a specific bill (the Falconer Bill) was before Parliament.
  4. iv. There were three legitimate aims promoted by s2(1) which were sufficiently important to justify limiting Mr Conway’s fundamental rights under Art8(1).
    1. a. The protection of the weak and vulnerable.
    2. b. The protection of the sanctity of life as a moral principle.
    3. c. The promotion of trust and confidence between doctor and patient, which encourages patients to seek and then act upon medical advice.
  5. v. There is clearly is a rational connection between the prohibition in s2(1) and all three of those legitimate aims; s2(1) strikes a fair balance between the three legitimate aims which represent the interests of the wider community and the rights of people in the position of Mr Conway as to the timing and manner of their death.
  6. vi. There is a real risk that a change in the law to legalise provision of assistance for suicide could have a serious detrimental effect on trust between doctors and patients.
  7. vii. There are powerful constitutional reasons as to why the court should respect Parliament’s assessment of the necessity of s2(1), not least where it has made its own evaluative assessment with the benefits of the judgments in Nicklinson.

Grounds of appeal

Mr Conway appealed on seven grounds, which were grouped within three main issues of principle.

The first issue concerned the correct way in which the court should respond to Parliament’s decision not to amend s2(1) of the 1961 Act and the proper approach to be taken when assessing the proportionality of s2(1).

The second issue concerned the way in which the Divisional Court considered Mr Conway’s proposed scheme, including whether it had misdirected itself in determining the approach to take in identifying whether s2(1) strikes a fair balance between the rights of the individual and the interests of the wider community.

The third issue concerned the weight to be placed on personal autonomy, and the legal and moral differences between a request for an assistance with dying and a request for euthanasia.

Held:

  1. 1) There was no error of principle in the reasoning of the Divisional Court.
  2. 2) The prohibition on assisted suicide achieves a fair balance between the interests of the wider community and the interests of people like Mr Conway.
  3. 3) The Divisional Court had not abdicated its responsibility to make an assessment under Article 8(2); there were powerful constitutional reasons for respecting Parliament’s assessment of the necessity of maintaining s2 of the Suicide Act, and the Divisional Court had given this the appropriate weight when making its own assessment.
  4. 4) The decision as to whether the blanket ban on assisted suicide is both necessary and proportionate involves an evaluative judgment and a policy decision, which Parliament is better placed than the court to decide.
JUDGMENT SIR TERENCE ETHERTON MR, SIR BRIAN LEVESON P AND LADY JUSTICE KING: [1] This is an appeal from the order dated 5 October 2017 of the Divisional Court (Sales LJ, Whipple and Garnham JJ) dismissing the claim of the appellant, Mr Noel Conway (‘Mr Conway’), for a declaration under s4 of the Human Rights …
This content is only available to members.

Counsel Details

Nathalie Lieven QC (Blackstone Chambers, Blackstone House, Temple, London EC4Y 9BW, tel 020 7583 1770, e-mail clerks@blackstonechambers.com) and Alex Ruck Keene and Annabel Lee (39 Essex Chambers, 81 Chancery Lane, London, WC2A 1DD, tel 020 7832 1111, e-mail clerks@39essex.com), instructed by Irwin Mitchell LLP (Riverside East, 2 Millsands, Sheffield S3 8DT, tel 0114 276 7777, e-mail enquiries@irwinmitchell.com) for the appellant.

James Eadie QC (Blackstone Chambers, Blackstone House, Temple, London EC4Y 9BW, tel 020 7583 1770, e-mail clerks@blackstonechambers.com), James Strachan QC and Benjamin Tankel (39 Essex Chambers, 81 Chancery Lane,London, WC2A 1DD tel: 0207 832 1111, email clerks@39essex.com) (instructed by the Government Legal Department, One Kemble Street, London, WC2B 4TS, tel 020 7210 3000, email thetreasurysolicitor@governmentlegal.gov.uk) for the Respondent.

Caoilfhionn Gallagher QC and Graeme Hall (Doughty Street Chambers, 54 Doughty StreetLondon, WC1N 2LS, tel 020 7404 1313, email c.gallagher@doughtystreet.co.uk), instructed by Hodge Jones and Allen LLP (180 North Gower Street, London NW1 2NB, tel 0808 250 2129, email hja@hja.net) for the First Intervener.

Catherine Casserley (Cloisters Chambers, Elm Court, Temple, London, EC4Y 7AA, tel 020 7827 4000, email clerks@cloisters.com) (instructed by Fry Law, Globe Works, Penistone Road, Sheffield, S6 3AE, tel 0114 361 0000) for the Second Intervener.

David Lawson (Serjeants’ Inn, 85 Fleet Street, London EC4Y 1AE, tel 020 7427 5000, email clerks@serjeantsinn.com) (instructed by Barlow Robbins LLP, (5th Floor, 20 North Audley Street, London, W1K 6WE tel 020 7078 0810, Email london@barlowrobbins.com) for the Third Intervener.

Cases Referenced

  • A v Secretary of State for the Home Department [2005] 2 AC 68
  • AB v Canada (Attorney General) [2016] ONSC 1912
  • Airedale NHS Trust v Bland [1993] 1 AC 789
  • Bank Mellat v HM Treasury (No. 2) [2014] 1 AC 700
  • Carter v Canada (Attorney General) [2015] SCC 5
  • Gross v Switzerland [2013] 58 EHRR 197
  • Haas v Switzerland [2011] 53 EHRR 33
  • Hasan and Chaush v Bulgaria [2000] 34 EHRR 1339
  • In the matter of an application by the Northern Ireland Human Rights Commission for judicial review (Northern Ireland) [2018] UKSC 27
  • King’s College Hospital NHS Foundation Trust v C [2016] COPLR 50
  • Koch v Germany [2012] 56 EHRR 6
  • Nicklinson v United Kingdom [2015] 61 EHRR SE7
  • Pretty v United Kingdom [2002] 35 EHRR 1
  • R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621
  • R (Al-Skeini) v Secretary of State for Defence [2008] AC 153
  • R (Conway) v Secretary of State for Justice [2017] EWCA Civ 275
  • R (Conway) v Secretary of State for Justice [2017] EWHC 2447 (Admin)
  • R (Conway) v Secretary of State for Justice [2017] EWHC 640 (Admin)
  • R (Conway) v Secretary of State for Justice [2018] EWCA Civ 16
  • R (Countryside Alliance) v Attorney General [2008] 1 AC 719
  • R (Kenward and Kenward) v DPP and HM Attorney General [2016] 1 Cr App R 16
  • R (Nicklinson) v Ministry of Justice [2015] AC 657
  • R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800
  • R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345
  • R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394
  • R (Ullah) v Special Adjudicator [2004] 2 AC 323
  • R v BM [2008] EWCA Crim 560
  • R v Brown [1994] 1 AC 212
  • Re A (Children) (Conjoined Twins) [2001] 2 WLR 480
  • Re B [2002] EWHC 429 (Fam) [2002] 2 All ER 449
  • Re Briggs (No. 2) [2017] 4 WLR 37
  • Re G (Adoption: Unmarried Couple) [2009] 1 AC 173
  • Re L (No. 2) [2012] 3 WLR 1439
  • Re Z [2005] 1WLR 959
  • Rodriguez v Attorney General of Canada [1994] 2 LRC 136
  • Washington v Glucksberg [1997] 521 US 702

Legislation Referenced

  • Coroners and Justice Act 2009, s59
  • Criminal Justice Act (NI) 1945, s25
  • Human Rights Act 1998, ss3, 4
  • Mental Capacity Act 2005, s2(4)
  • Offences Against the Person Act 1861, ss18, 20, 58, 59
  • Prosecution of Offences Act 1985, s10
  • Suicide Act 1961, ss1, 2