R (on the application of Conway) v The Secretary of State for Justice
|England & Wales
|Sir Terence Etherton MR,Lady Justice King,Sir Brian Leveson P
|27 June 2018
| EWCA Civ 1431
|Court of Appeal (Civil Division)
|Case No: C1/2017/3068
|27 June 2018
 EWCA Civ 1431
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sales LJ, Whipple and Garnham JJ
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice King
Case No: C1/2017/3068
Nathalie Lieven QC, Alex Ruck Keene and Annabel Lee (instructed by Irwin Mitchell LLP) for the Appellant
James Eadie QC, James StrachanQC and Benjamin Tankel (instructed by the Government Legal Department) for the Respondent
Caoilfhionn Gallagher QC and Graeme Hall (instructed by Hodge Jones and Allen LLP) for the First Intervener
Catherine Casserley (instructed by Fry Law) for the Second Intervener
David Lawson (instructed by Barlow Robbins LLP) for the Third Intervener
Hearing dates: 1, 2 and 3 May 2018
Sir Terence Etherton MR, Sir Brian Leveson Pand
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 section 4 of the Human Rights Act 1998 (“the HRA”) in respect of section 2(1) of the Suicide Act 1961 (“the 1961 Act”), which imposes a blanket ban on assisted suicide. Mr Conway contends that section 2(1) constitutes a disproportionate interference with his right to respect for his private life under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
The Factual Background
Mr Conway is a 68-year-old man who, in November 2014, was diagnosed with a form of motor neurone disease (“MND”). Mr Conway's condition was summarised by the Divisional Court's judgment as follows (at ):
“MND is a neurological disease which attacks the nerve cells responsible for controlling voluntary muscle movement. The nerve cells degenerate and die and stop sending messages to the muscles. The muscles gradually weaken and waste away. Eventually, the brain's ability to start and control voluntary movement is lost. Mr Conway has to use a wheelchair and requires ever increasing levels of assistance with daily life, eating and bodily functions. The muscles which allow Mr Conway to breathe are also wasting away. He increasingly finds it difficult to breathe without mechanical assistance in the form of non-invasive ventilation (“NIV”), which he requires for an increasing number of hours each day. The average life expectation of a person with MND is between two and five years. …”
We were told that, by the time of the hearing before us, his condition had deteriorated to the extent that he required NIV for approximately 23 hours each day. We express our deep sympathy with Mr Conway's circumstances and our profound respect for the dignified and resolute way in which he has been coping with what is a terrible disease.
When Mr Conway has a prognosis of six months or less to live, he wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. In his own words:
“I would like to be able to seek assistance from a medical professional so that I may be prescribed medication which I can self-ingest to end my life successfully, if I wish to do so. If I am unable to take the medication by drinking a prescribed medication, I would also be prepared to receive medication in a different format, by activating a switch for example. I do not believe that unsupervised alternative methods of suicide are humane or acceptable and would be additionally distressing for my loved ones.
I do not wish to get to a stage where my quality of life is so limited, in the last six months of life, that I am no longer able to find any enjoyment in it. This disease is a relentless and merciless process of progressive deterioration. At some point, my breathing will stop altogether or I will become so helpless that I will be effectively entombed in my own body. I would not like to live like this. I would find it a totally undignified state for me to live in. I find the prospect of this state for me to live quite unacceptable and I wish to end my life when I feel it is the right moment to do so, in a way that is swift and dignified. …”
It is the law which prevents him from obtaining this assistance with which this appeal is concerned and to which we now turn.
The Legal and Parliamentary Background
Section 2(1) of the Suicide Act 1961
Section 2(1) of the 1961 Act prohibits the assistance which Mr Conway desires. By section 1 of the 1961 Act Parliament abolished the rule of law under which it was a crime for a person to commit suicide. Parliament decided, however, to maintain the criminal prohibition of acts capable of providing encouragement or assistance for a person to commit suicide. It did so by enacting section 2(1) of the 1961 Act. Section 2(1), as amended by section 59(2) of the Coroners and Justice Act 2009, as follows:
“(1) A person (“D”) commits an offence if—
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D's act was intended to encourage or assist suicide or an attempt at suicide.”
It is, therefore, in respect of section 2(1) that Mr Conway seeks a declaration of incompatibility under section 4 of the HRA, on the basis that it is a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).
Since its enactment, the criminal offence in section 2(1), as well as its compatibility with Convention rights, has been the subject of much debate in Parliament and in the courts.
Article 8 provides as follows:
“Article 8: Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Early parliamentary engagement with section 2 and questions of assisted suicide
In describing Parliament's engagement with the relevant issues in this part of the judgment, we gratefully take much of the detail from the Divisional Court's judgment below, which in turn was taken from the detailed grounds of the Secretary of State (“the SoS”) for resisting the claim.
The Parliamentary documentation provided to us commences with the 1994 Report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I, 1994). The Committee concluded in that report that “as far as assisted suicide is concerned” they saw “no reason to recommend any change in the law” (at paragraph 26), primarily on the basis that “the message which society sends to vulnerable and disadvantaged people … should not, however, obliquely, encourage them to seek death, but should assure them of our care and support in life” (at paragraph 239). The Government in its response agreed, on the grounds that a change in the law “would be open to abuse and put the lives of the weak and vulnerable at risk” ( 1994 Cm 2553, p.5).
That was followed by the House of Lords decision in section 2(1) ban upon the human rights of those individuals who wished to seek assistance in bringing about their own death., (“ ”), which was the first major case concerning the impact of the The claimant, Diane Pretty, suffered from MND. She was mentally alert and wished to control the time and manner of her dying but her physical disabilities prevented her from ending her own life without assistance. The House of Lords accepted (at ) that she faced “the prospect of a humiliating and distressing death”. Mrs Pretty wished her husband to assist her and he had agreed, provided that the Director of Public Prosecutions (“the DPP”) undertook not to prosecute him. Although the court was not provided with any information as to how it was proposed that her husband would assist her suicide, nor any medical evidence showing what Mrs Pretty herself could do to carry out her wish, it was emphasised by the House of Lords (at ) that the final act of suicide would be carried out by her. Mrs Pretty sought an assurance from the DPP that her husband would not be prosecuted if he assisted her to commit suicide and she sought additional relief, including a declaration under section 4 of the HRA that section 2 of the 1961 Act was incompatible with her Article 8(1) rights.
The House of Lords unanimously dismissed her claim, holding that the DPP had no power to undertake that a crime yet to be committed should be immune from prosecution and also that section 2 of the 1961 Act was not incompatible with her Article 8(1) rights. The House of Lords reached their conclusion on the basis that Mrs Pretty's rights under Article 8(1) were not engaged (see  (Lord Bingham);  (Lord Steyn); – (Lord Hope);  (Lord Hobhouse) and  (Lord Scott)). The House of Lords went on to hold that, even if her rights had been engaged, any interference with them by reason of section 2 was both proportionate and justified under Article...
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