In November 2014, Mr Noel Conway was diagnosed with Motor Neurone Disease. A time will come when he will be told that he has less than six months to live and he wishes at that point, while he still has the capacity to make the decision, to be assisted into a peaceful and dignified death. Under section 2(1) of the Suicide Act 1961 (Criminal liability for complicity in another’s suicide), however, it is an offence to assist someone to commit suicide. Mr Conway sought a declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 is incompatible with his rights under Articles 8(1) (respect for private and family life and 14 (prohibition of discrimination) ECHR. In R (Conway) v Secretary of State for Justice [2017] EWHC 640 (Admin), on a split decision, the Divisional Court refused his application to bring judicial review proceedings. In R (Conway) v The Secretary of State for Justice & Ors [2018] EWCA Civ 1431, he was again unsuccessful.

The appeal

Mr Conway appealed on the following grounds:

• that, as to Parliament’s decision not to amend section 2(1) of the 1961 Act and the proper approach to be taken when assessing the proportionality of section 2(1),  the Divisional Court had misdirected themselves as to the correct legal test to apply under Article 8(2) ECHR (respect for private and family life) and as to the approach to take when assessing whether section 2(1) is more than “necessary” for the purposes of Article 8(2) [67];
• that the Divisional Court had adopted a legally-flawed approach to the evidence, had failed to address significant evidence and material relating to the strength of the proposed safeguards under Mr Conway’s alternative statutory scheme and had misdirected themselves as to the approach to take in identifying whether section 2(1) strikes a fair balance between the rights of Mr Conway and the interests of the community for the purposes of Article 8(2) [68];
• that the Divisional Court had failed to address the consequence of the accepted presence of “biased decision-making” in treatment refusal decisions and had also failed to address the legal and moral differences between a request for assistance with dying and a request for euthanasia [69]; and
• that if the Divisional Court was found to have made any errors of principle in relation to those three issues, the Court of Appeal should retake the proportionality assessment itself [70].

The Secretary of State cross-appealed on the grounds that the Divisional Court had erred in concluding that R (Pretty) v DPP [2001] UKHL 61 is not binding authority that section 2(1) of the 1967 Act does not infringe Mr Conway’s Article 8(1) rights and that it was institutionally inappropriate for the courts, rather than Parliament, to consider the compatibility of section 2(1) with Article 8 [71].

The judgment

The Court of Appeal began from the principle that the right of an individual to decide how and when to end his or her life is an aspect of the right to respect for private life protected by Article 8 of the Convention [120] and that section 2 of the 1961 Act interferes with that right which can only valid interference if it is “necessary in a democratic society” for one or more of the purposes specified in Article 8(2) – in this context, the protection of health and morals and the protection of the rights of others [121]. When considering whether legislative measures satisfied the requirements of Article 8(2), it was necessary to consider the following four questions identified by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2012] UKSC 45 at [45]:

“(a) is the legislative objective sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?” [122].

It was common ground that only (c) and (d) were relevant to the present appeal [123].

The Court of Appeal could find no error of principle in the reasoning of the Divisional Court, which had observed (at [47]) that, in these proceedings, the SoS contended that a number of objectives were promoted by section 2 of the 1961 Act, not just protection of the weak and vulnerable, but also respect for the sanctity of life and promotion of trust between patient and doctor in the care relationship [201]. The Divisional Court had concluded (at [68] and [94]) that there was a real risk that to legalise assistance for suicide would have a seriously detrimental effect on the trust between doctors and patients and (at [96]) that there was a rational connection between the prohibition in section 2 of the 1961 Act and the protection of the weak and vulnerable. Moreover, they held (at [97]) that the prohibition reinforced a moral view about the sanctity of life and promoted trust and confidence between doctors and their patients. They rejected the submission that Mr Conway’s proposed scheme would adequately address concerns regarding the protection of the weak and vulnerable, “let alone the other legitimate aims of the blanket prohibition in section 2 of the 1961 Act” [203]. The Divisional Court had explained (at [109]) why,there were powerful constitutional reasons for the court to respect Parliament’s assessment of the necessity of maintaining section 2 and (at [110]) why Parliament was better placed than the court to make the relevant assessment regarding the likely impact of changing the law:

“That approach was plainly not an abdication of all responsibility to make an assessment under Article 8(2). It was according appropriate respect for the views of Parliament when carrying out the assessment under Article 8(2)” [205].

The Divisional Court had also concluded (at [114]) that the prohibition in section 2 of the 1961 Act struck a fair balance between the interests of the wider community and the interests of people in the position of Mr Conway [206].

The Court of Appeal concluded that the approach and conclusions of the Divisional Court could not be faulted [207]. Appeal dismissed [208].