In Noel Douglas Conway v The Secretary of State for Justice  EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice  EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.
The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.
The Senior President of Tribunals, Sir Ernest Ryder, gave the lead judgment. First, he noted that the applicant, Mr Conway, suffers from Motor Neurone Disease, and has a prognosis of less than 6 months to live. While he has a common law right to refuse medical treatment, he wishes to end his life in a dignified manner, which will, however, require the positive assistance of medical professionals. That amounts to assisted suicide, contrary to the Suicide Act, although as the final act will be taken by Mr Conway, it is would not amount to euthanasia. Mr Conway had proposed an assisted suicide scheme supported by extensive expert evidence, incorporating various safeguards, and argues that the blanket prohibition against assisted suicide is an unnecessary and disproportionate interference with his Article 8 ECHR rights.
The Senior President noted that there was no issue as to whether or not Mr Conway’s Article 8 rights were interfered with. The test for a court reviewing such interference would therefore be whether such interference was proportionate.
On analysing the Divisional Court’s application of the proportionality test, the Senior President held that the test had not been applied correctly. The Senior President stated that there was a serious question as to whether there had been a sufficient analysis of the evidence and how the court had resolved the serious disagreements in the expert evidence so as to conduct the proportionality exercise. Given the indications of the Supreme Court in Nicklinson about the relevance of an alternative statutory scheme to proportionality it was arguable that each justification should have been tested against all of the relevant evidence. Further, the Divisional Court’s review of the evidence was selective.
The Court of Appeal’s approach was summarised in the short concurring judgment of Lord Justice Underhill (para 32):
“The essential point being made by the Appellant, which is arguably slightly obscured by the various different ways in which it is formulated in the grounds of appeal, is that the majority of the Supreme Court in Nicklinson contemplated that, in the case of a future challenge of this kind, any proposed scheme incorporating adequate safeguards for assisted dying would be subjected to a more intense form of assessment than was undertaken by the Divisional Court in this case. The core of the criticism is that what the Court did, in substance if not in form, was to find objective factors which weighed against the proposed scheme and to proceed on the basis that, given the existence of such factors, the weight to be accorded to them was a matter for Parliament; and that that did not constitute a proper assessment of proportionality. The point is not so much that the Court did not take the evidence into account as that it performed the wrong kind of exercise with it.”
Dominic Ruck Keen is a barrister at One Crown Office Row.
His brother, Alexander Ruck Keene of 39 Essex Chambers, appeared as junior counsel to Mr Conway. He has had no part in the writing of this blog.