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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Conway v The Secretary of State for Justice  EWCA Civ 16 (18 January 2018)
Cite as:  EWCA Civ 16
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ON APPEAL FROM The Divisional Court
Sales LJ, Whipple J and Garnham J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
| Noel Douglas Conway
|- and -
|The Secretary of State for Justice
Mr James Strachan QC & Mr Benjamin Tankel (instructed by Government Legal Department) for the Respondent
Hearing date: 18 January 2018
Crown Copyright ©
Sir Ernest Ryder, Senior President:
R (Pretty) v Director of Public Prosecutions  UKHL 61;  1 AC 800 ("Pretty");
R (Purdy) v Director of Public Prosecutions  UKHL 54;  1 AC 345 ("Purdy"): and
R (Nicklinson) v Ministry of Justice  UKSC 38;  AC 657 ("Nicklinson").
"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."
a. Is aged 18 or above:
b. Has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live;
c. Has the mental capacity to decide whether to receive assistance or to die;
d. Has made a voluntary, clear, settled and informed decision to receive assistance to die; and
e. Retains the ability to undertake the final acts required to bring about his death having been provided with such assistance.
a. The individual makes a written request for assistance to commit suicide, which is witnessed:
b. His treating doctor has consulted with an independent doctor who confirms that the criteria are met, having examined the patient;
c. Assistance to commit suicide is provided with due medical care; and
d. Assistance is reported to an appropriate body.
a. Is the court bound by existing domestic authority in Pretty and Nicklinson to hold that section 2 is compatible with article 8 or to decide this case in a particular way?
b. What are the legitimate aims that section 2 pursues?
c. Is there a rational connection between the prohibition in section 2 and the legitimate aims?
d. Is section 2 necessary to meet the legitimate aims?
e. Does the measure strike a fair balance between the rights of the individual and the interests of the community?
a. The Divisional Court misdirected itself as to the correct legal test to apply under article 8(2) ECHR ("Ground 1").
b. The Divisional Court adopted a legally flawed approach to the evidence ("Ground 2").
c. The Divisional Court misdirected itself in law as to the approach to take to identifying whether the prohibition contained in section 2(1) SA 1961 is more than "necessary" for the purposes of article 8(2) ECHR ("Ground 3").
d. In light of the errors identified in Grounds 1, 2, and 3 or otherwise, the Divisional Court failed to address significant evidence and material before it relating to the strength of the safeguards proposed by the appellant ("Ground 4").
e. The Divisional Court failed to address the consequence of the accepted presence of "biased decision-making" in treatment refusal decisions ("Ground 5").
f. The Divisional Court misdirected itself as to the approach to take in identifying whether the prohibition in Section 2(1) SA 1961 struck a fair balance between the rights of the appellant and the interests of the community for purposes of article 8(2) ECHR ("Ground 6").
g. The Divisional Court failed to address the legal and moral differences between a request for assistance with dying and a request for euthanasia (2Ground 7").
Lord Justice Underhill:
Upon the basis that as presently advised neither party seeks to call oral evidence or to cross examine any witness
And upon the basis that the parties will co-operate to identify areas of agreement and disagreement as regards the expert evidence
1. We give Mr. Conway permission to add ground 1 to his appeal
2. We grant permission to appeal on all grounds
3. We direct that there be expedition in the hearing of the appeal
4. We direct that the appeal shall be heard by 3 Lord or Lady Justices of Appeal with a time estimate of one full court week to include reading time on a date to be fixed
5. We direct that the Secretary of State shall file and serve any Respondent's Notice within 14 days of today, if so advised
6. We direct that any party seeking permission to intervene shall file and serve their application within 14 days of today attaching if possible a proposed skeleton argument and any evidence upon which they seek to rely or otherwise setting out the substance of the issues that it is proposed they will address