Denning Law School

Jurisprudence & Legal Theory

R (CONWAY) V SECRETARY OF STATE FOR JUSTICE [2018] EWCA CIV. 1431

Background

This case is an appeal from the High Court on an application for Judicial Review (JR) seeking declaration
of incompatibility under s.4 of HRA’98 against s.2 of Suicide Act 1961. The High Court rejected the
application for declaration of incompatibility and hence the appellant thereby appealed to Court of Appeal
for reconsideration. Court of Appeal also rejected the issuance of declaration of Incompatibility.

Facts:

Conway is a 68-year old man suffering from motor neuron disease (which attacks nerve cells controlling
voluntary muscle movement). The disease is such that it requires non-invasive ventilation (NIV) on a daily
basis and at times even for around 23 hours in a day. The doctors had made a prognosis of approximately
6 months or less of life. Mr. Conway wished to end his life peacefully and with dignity as he didn’t want a
life whose quality was so limited that he was no longer able to enjoy it. The law prevented him from
committing suicide or taking assistance for it.

Legal Background:

S.2 of Suicide Act 1961 makes “encouraging or assisting a suicide of another person” an offence. Mr.
Conway sought declaration of incompatibility in respect of S.2 stating that S.2 is a disproportionate
interference with his article 8 rights.

Early Parliamentary view:

Parliament in their 1994 report (House of Lords Select Committee on Medical Ethics) stated that any change
in law on assisted suicide will send a negative message to the vulnerable and disadvantaged people in the
society. The parliament and the government were of the view that the message to the vulnerable and
disadvantaged people should be on which gives them assurance of the State’s care and support in life rather
than encouraging them to take away their lives.

Pretty Case (2001):

There was an application to the court seeking immunity from prosecution of a person who was going to
assist another in committing suicide. The courts rejected the application stating DPP (Director of Public
Prosecution) has no authority to grant immunity for offences yet to be committed. ECTHR held that
restricting assisted suicide engaged article 8 of ECHR but the interference was proportionate and justified,
stating that countries have a margin of appreciation in determining matters involving public health and
safety. The ECTHR’s view of wide margin was also affirmed in Nicklinson case.

Post Pretty Parliamentary Debate:

Following Pretty, the parliament considered this issue on 5 different occasions;

1) Lord Joffe tabled a bill (between 2003 and 2006) seeking legislation of assisted suicide of
terminally ill but mentally capable people who are suffering unbearably (Joffe bill), the bill was
never passed.
Denning Law School
Jurisprudence & Legal Theory

2) House of Lord’s select committee sought consultation from large number of groups and
organizations including experts from the jurisdictions where assisted suicide was allowed such as,
Oregon, USA, Switzerland and Netherlands. The select committee after consultation recommended
for a change in law.
3) The matter in House of Commons was never debated and got adjourned.
4) The House of Lords passed Coroners and Justice Act which reaffirmed s.2 in more clear and precise
words.
5) House of Commons also approved the Coroners and Justice Act 2009.

Purdy Case (2010):

Ms. Purdy wished to commit suicide for which her husband would’ve assisted her. She sought Director
of Public Prosecutions (DPP) permission for such assistance. The House of Lords applied the Pretty’s
principle. However, the fact that DPP had a blanket policy of not allowing DPP a power to grant
immunity was an unlawful fetter (limitation) of discretion. The court required DPP to make offence
specific policies, giving guidance on when consent for a crime can be given or not.

Post Purdy Parliamentary Debate:

The DPP prepared a draft policy which was presented to the

parliament for approval. The matter was debated at multiple Euthanasia – the doctor/ caretaker
occasions in House of Commons and House of Lords, but was will terminate the life by giving lethal
never concluded. dose of medicine. [Murder]

Nicklinson case (2014): Assisted Suicide – the doctor will

The Claimants in the present case were in such a physical state
that they could not commit suicide even with assistance. The
third party accessory would effectively be conducting
euthanasia. In this case, 9 Justices of Supreme Court were
divided in their judgements;
a- Three judges/ justices stated that the law is not
incompatible with article 8
b- Four judges stated that issuing declaration of
incompatibility (DOI) would be premature as the
parliament at that time was considering the enactment of
a bill presented by Lord Falconer.
c- Two judges were of the view that S.2 is incompatible with
article 8.
d- The Nicklinson case was appealed to ECTHR, who reiterated their Pretty judgment stating the
member States wide margin of appreciation in this matter.
prepare the lethal drug and the final
administration of the drug will be
done by the patient himself. [Suicide,
Assisted Suicide]
Termination of healthcare
treatment – the doctors will not give
any lethal drug, but simply stop
treatment (such as switch off the
ventilator). The patient will die of
natural causes. [Omission, No crime
as there was no DOC – Bland]

Post Nicklinson Parliamentary Debate:

Denning Law School
Jurisprudence & Legal Theory

Following Nicklinson case, multiple bills were introduced in House of Commons, as well as, House of
Lords, proposing decriminalizing assisted suicide (Falconer Bill, Marris Bill, and Hayward Bill).
These bills proposed that assisted suicide should be allowed where:

a) Patient is above the age of 18.

b) They have demonstrated a voluntary, clear, informed and settled wish to end his life.
c) They must have mental capacity to make such a decision.
d) The declaration must be made in presence of an independent witness and 2 qualified medical
practitioners.
e) A registered medical practitioner must have stated that the patient is suffering from a condition
which cannot be reversed with treatment and has no longer than 6 months to live.
f) Consent of High Court was obtained.

None of the bills were ever passed by the respective Houses. The bills never were debated due to lack
of Parliamentary time

Judgement Under Appeal – Conway’s Arguments

1- S.2 of the Suicide Act is incompatible with Article 8 and the same cannot be head in line with
Article 8 under S.3 HRA and this courts should grant DOI
2- Mr. Conway proposed that a statutory scheme be enacted which allows assisted suicide with due
medical care.

High Court / Divisional Bench Judgement

The High Court refused to issue DOI stating the following reasons:

The divisional court stated that there is no compatibility of s.2 with article 8 because;

1- Conway can choose to die by asking for removal of non-invasive ventilation and delivery of
medication to relief distress (para 54) (i.e termination of healthcare treatment)
2- The case of Nicklinson and Conway are materially different from each other, Nicklinson case was
in relation to euthanasia and this is in relation to physician assisted suicide (para 55)
3- The matter of physician assisted suicide has been left by ECTHR to be decided by member states
(para 56)
4- The issues raised by Mr. Conway has already been deliberated in detail in parliament (para 57)
5- The divisional court considered a range of evidence including comparative legal positions of other
states, expert medical reports and views of medical associations which indicated that any change
in law will have a serious detrimental effect on trust between doctors and patients (para 58)
6- Divisional court rejected the submission that they are bound by Pretty case as well as Nicklinson
case (para 59 and 60)
7- S.2 achieves 3 legitimate aims;
a- Protects weak and vulnerable
b- Protects sanctity of life as a moral principle
c- Promotes trust and confidence amongst doctors and the patients (para 61)
8- Divisional court concluded that s.2 strikes a fair balance between the legitimate aims and the rights
of the individual (most imp point) (para 64)
Denning Law School
Jurisprudence & Legal Theory

9- The High Court also observed that there are powerful constitutional reasons for respecting
Parliaments assessment of section 2, referring to the Parliament’s democratic mandate and the
Parliament’s role in cases including social policy and moral value judgement.
Appeal to the Court of Appeal (COA):

It held that s.2 interferes with Article 8 (Pretty case,
Nicklinson, Purdy and Haas v Switzerland).
The issue before this court is whether the interference is
justified and proportionate under Article 8(2). (para 121)
In order to satisfy proportionality requirements, the
requirements set out in Quila case (2012) needs to be met;
a- Is the objective sufficiently important to justify
limiting fundamental rights?
b- Are the measures rationally connected to it?
c- Are they necessary?
d- Do they strike a fair balance between rights of
individuals and interest of community?
Breach of Article 8
Breach of Article 8 is only where:
(a) There is interference with private
life; and
(b) Such interference is not justified/
proportionate in achieving any
policy aim.
There won’t be a breach of Article 8 if
the interference was justified and
proportionate.

The appeal revolved around 3 main issues:

1. What is the appropriate way in which the court should respond to Parliament’s decision of not
amending section 2.
2. The High Court’s stance towards the safeguards proposed by Conway.
3. The amount of weight which should be placed on the importance of personal autonomy. Mr.
Conway stated that High Court’s decision was a biased decision and the court failed to appreciate
the difference between euthanasia and assisted suicide.

Interveners’ Arguments Should Interveners be allowed in a case?

- Humanists UK supported Conway’s No – the case is to be decided for the parties

appeal and stated DOI ought to be issued. involved. The views of the interveners is not
(Humanists is a reputable organization relevant.
having expertise in moral philosophy and
Yes – In cases of public importance, pressure groups
law and is supported by ISO and leading can be allowed to intervene.
philosophers, scientists and experts).
- ‘Not Yet Dead’ UK argued for dismissal
of appeal.
- ‘Care not Killing’ also argued for dismissal of appeal.

The Court of Appeal was of the view that the case involves policy matters and thus, the Court is not well-
suited to decide this matter and issue DOI. This is because:
Denning Law School
Jurisprudence & Legal Theory

(1) The court is not well suited to approve Conway's scheme (which allows people with prognosis of
6months) as it requires drawing a line which the court cannot draw. Court is not suited to determine that
persons having prognosis of more than 6 months cannot get permission to die (para 188).

(2) The matter in question requires views of the public at large. Parliament can conduct consultations with
Law Commission and get views from wider audience. Courts cannot conduct such wide consultations. (para
189)

(3) In Pretty case, Lord Steyn had stated that any change in law should not be brought by the Judiciary (para
190)

(4) In Nicklinson, the HOL gave a unanimous view that Parliament is the appropriate forum for resolving
the issue of PAS (para 191).

CoA then compared the present case with the case of Northern Ireland Human Rights Commission
(NIHRC) (2018) case. The NIHRC case was regarding DOI on criminalizing abortion. The Supreme Court
did not allow JR because there was no standing with NIHRC. However, the SC made an obiter statement
stating that if there was standing, they would have issued DoI.

The CoA held that there are major differences between the NIHRC case and the present case as:

(a) For abortion, the court is better placed to decide, whereas, for PAS, the Parliament is better placed
to make a decision (para 197).

(b) PAS involves controversial and sensitive issues. Legalizing PAS would affect the rights of the ones
who wish to commit PAS and the ones who will feel pressurized to commit PAS. On the other
hand, abortion involves termination of birth of foetus, which is not considered a human being in
legal terms (para 198).

(c) The law on abortion is uniform across Europe (i.e all European countries allow abortion). Whereas,
no European country allows PAS (other than Switzerland) (para 199)

(d) For abortion, there was no assurance/ guarantee that the Northern Ireland’s assembly will address
the issue in near future. Whereas, the issue of legalizing PAS is already under Parliament’s
consideration (for e.g. Joffe Bill, Marris Bill, Hayward Bill and Falconer Bill) (para 200)
The Court of Appeal held that the Divisional Court’s decision did not reveal any error of law. The Divisional
Court did an evaluative judgement of all the relevant evidence and gave deference to Parliament’s view
which was appropriate.