This essay will distinguish between the application of the law of necessity in the two leading cases of R v Dudley and Stephens and Re A (Children) (Surgical Separation). The defence of necessity, which argues that a defendant committed a crime to prevent a greater evil, is very narrowly defined in English law, particularly in cases of murder. While the nineteenth-century case of Dudley and Stephens firmly rejected necessity as a defence to murder, the more recent case of Re A appeared to allow a similar defence in a very specific medical context. By examining the facts and judicial reasoning of each case, this essay will show that the different outcomes are based on crucial factual distinctions, primarily concerning the inevitability of the victim’s death and the nature of the choice made by the defendants.
The Rejection of Necessity in R v Dudley and Stephens
The case of R v Dudley and Stephens (1884) is the traditional authority on the defence of necessity and murder. The facts were stark: four men were shipwrecked and adrift in an open boat thousands of miles from land. After many days without food and water, two of the men, Dudley and Stephens, decided to kill the weakest among them, a young cabin boy named Richard Parker, in order to eat his body and survive. They were rescued a few days later and subsequently prosecuted for murder.
The defendants argued that it was necessary to kill Parker to save their own lives. The court, however, rejected this defence completely. Lord Coleridge CJ, giving the judgment of the court, held that there was no principle of law that justified the killing of an innocent person to save one’s own life. The court was concerned with the moral implications of allowing such a defence, asking who would be the judge of such a necessity. It was stated that such a principle could be “the legal cloak for unbridled passion and atrocious crime” (R v Dudley and Stephens (1884), p. 287). The judgment emphasised the duty of self-sacrifice, stating that it is sometimes necessary for a person to die rather than save their life by killing another. The defendants were therefore convicted of murder. This case established a clear and strict precedent that the pressure of hunger or the desire for self-preservation does not create a necessity that can excuse the killing of an innocent person.
The Acceptance of a Form of Necessity in Re A
Over a century later, the Court of Appeal faced a different but related dilemma in Re A (Children) (Surgical Separation) [2001]. The case involved conjoined twins, known as Jodie and Mary. They were joined at the lower abdomen. Jodie was the stronger twin, with a functioning heart and lungs, while Mary’s organs were not properly formed. Mary was only alive because her circulation was being maintained by Jodie’s heart. Medical evidence showed that if the twins remained conjoined, both would die within a matter of months. However, if they were surgically separated, Jodie had a very high chance of living a normal life, but Mary would die immediately as her connection to Jodie’s circulatory system would be severed. The parents refused to consent to the operation on religious grounds, so the hospital sought a declaration from the court that the operation would be lawful.
The Court of Appeal granted the declaration, permitting the separation. The judges distinguished the case from Dudley and Stephens. Brooke LJ applied a three-part test for the defence of necessity: (1) the act is needed to avoid inevitable and irreparable evil; (2) no more should be done than is reasonably necessary for the purpose to be achieved; and (3) the evil inflicted must not be disproportionate to the evil avoided (Herring, 2022). He reasoned that in this case, all three requirements were met. He distinguished Dudley and Stephens on the basis that in that case, the defendants chose to kill Parker, who was not in any more danger than they were. In contrast, Mary was, in Brooke LJ’s view, “self-designated for a very early death” ([2001] Fam 147, at p. 240). Her body was not sustainable on its own, and the operation was seen not as a direct attack on her, but as an act to save Jodie from the fatal threat that Mary’s condition posed to her. The choice was not who to kill, but whether to save one life (Jodie) or let both die.
Conclusion
The primary distinction between the law of necessity in Dudley and Stephens and Re A lies in the specific facts which the courts faced. In Dudley and Stephens, the defendants made a choice to kill an innocent person who, while weak, had a chance of survival, in order to benefit themselves. The law refused to allow individuals to make such a utilitarian calculation. In contrast, Re A concerned a situation where one of the individuals, Mary, had no prospect of independent survival. Her death was inevitable in the short term regardless of the operation, and her continued existence was actively causing the death of her sister, Jodie. The court in Re A did not create a general defence of necessity for murder but instead carved out a very narrow exception applicable to these unique medical facts, where the act was seen as a way of saving one life rather than choosing one to kill. Furthermore, Re A was a civil case seeking prior approval from a court, allowing for objective judicial scrutiny, whereas Dudley and Stephens was a criminal prosecution after the event. Therefore, while Dudley and Stephens remains the leading authority against a general defence of necessity for murder, Re A shows that in exceptional, medically complex situations, a similar doctrine can be used to justify an action that results in death.
References
Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford: Oxford University Press.
R v Dudley and Stephens (1884) 14 QBD 273 DC.
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147.
