Necessity, private defence and the killing of Mary

Criminal Law Review

Volumn , Issue JULY, 2001, Pages 515-526

  Rogers, Jonathan ^a  

^a BRUNEL UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONJOINED TWINS; CRIMINAL LAW; DEATH AND EUTHANASIA; ETHICAL THEORY; EUTHANASIA; FEMALE; HOMICIDE; HUMAN; INFANT; LEGAL APPROACH; LEGAL ASPECT; POLITICAL SYSTEM; RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION); SOCIOECONOMICS; SURGERY; UNITED KINGDOM;

DEATH AND EUTHANASIA; LEGAL APPROACH; RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION);

CRIMINAL LAW; DEMOCRACY; ENGLAND; ETHICAL THEORY; EUTHANASIA; FEMALE; HOMICIDE; HUMANS; INFANT; SURGICAL PROCEDURES, OPERATIVE; TWINS, CONJOINED; VALUE OF LIFE;

EID: 25844514798     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (70)

1. [2000] 4 All E.R. 961.
2. op. cit. at 973-976.
3. op. cit. at 972.
4. op. cit. at 976.
5. op. cit. at 984-985.
6. op. cit. at 970.
7. op. cit. at 970-971.
8. op. cit. at 976-977.
9. op. cit. at 977.
10. op. cit. at 980-982. The doctors' optimism seems to have been well founded, and five weeks after the operation the Daily Telegraph (December 16, 2000) reported that she "had gone on to develop at a rate that is ahead of many babies of her age".
11. Mary died a few minutes after the aorta was severed, towards the end of complex surgery which lasted for more than 15 hours: Daily Telegraph (November 7, 2000).
12. That is, the ruling that the artificial feeding of a person in a persistent vegetative state may lawfully be discontinued, as it is characterised as an "omission" to struggle rather than a positive act which causes death, provided that to do so is in the "best interests" of the patient: Airedale NHS Trust v. Bland [1993] 1 All E.R. 821. The Court of Appeal overruled Johnson J. in the High Court by holding that the "invasive treatment" proposed could not be classified as an omission, and also noted that Mary was not, in any event, being kept alive by "medical treatment" which was capable of being withdrawn: op. cit. at 1003.
13. I do not discuss these issues in depth here, but do not mean to suggest that this was a trivial conclusion. Undoubtedly the Court of Appeal deserves credit for not seeking to avoid the moral issues posed in this case by deciding that there was no prima facie case of murder, and in so doing they met the criticisms of Professor Ashworth, who recently complained that the courts were too willing to manipulate traditional concepts of criminal law in order to avoid using our underdeveloped law of exculpatory defences (see Ashworth "Criminal Liability in a Medical Context: The Treatment of Good Intentions" in A. P. Simester and A. I. H. Smith Harm and Culpability (Clarendon Press 1996).
14. op. cit. at 1016-1017. I use the phrase "private defence", as did Glanville Williams, to refer both to self-defence and to the defence of others from unlawful aggression.
15. op. cit. at 1051.
16. op. cit. at 1067.
17. See further p.519.
18. op. cit. at 1018, per Ward L.J.
19. [1990] 2 A.C. 1. 20 See Airedale NHS Trust v. Bland, supra and R v. Bournewood Community and Mental Health NHS Trust, ex p. L [1998] 3 All E.R. 289.
20. In Secretary of State for the Home Department v. Robb [1995] 1 All E.R. 677, Thorpe L.J. effectively overruled Leigh v. Gladstone [1909] 26 TLR 139 by holding that the prison authorities have no liberty to forcibly feed a starving prisoner, and in St. George's Healthcare NHS Trust v. S [1998] 3 All E.R. 673, the Court of Appeal overruled Re S [1992] 3 W.L.R. 806 by holding that a woman has an absolute right to refuse a Caesarian section, even when this refusal will result in the death of her foetus.
21. See S. Gardner "Necessity's Newest Inventions" (1991) 11 O.J.L.S. 125, 131.
22. [1884] 14 Q.B.D. 273.
23. [1938] 2 All E.R. 615.
24. See Martin [1989] 1 All E.R. 652 and Pummell [1995] 2 Cr.App.R. 607.
25. [1997] Fam. 110.
26. op. cit. at 112-115.
27. Criminal Law: Report of Defences of General Application (Law Com. No. 83, 1977) at para. 427.
28. With the exception of Huxley "Proposals and Counter Proposals on the Defence of Necessity" [1978] Crim.L.R. 141 at 143.
29. Re A (Children) [2000] All E.R. 961 at 982-983.
30. op. cit. at 1057.
31. op. cit. at 1004-1006.
32. op. cit. at 1010.
33. Ibid; the medical evidence had suggested that the chances that the operation would be unsuccessful and thus cause Jodie's death were less than six per cent (op. cit. at 980) and there was every reason to think that the benefits from a successful operation would be substantial indeed (op. at. at 996).
34. op. cit. at 1011. The decision here is that the operation would be more beneficial to Jodie's interests than it would be harmful to Mary's; we should note the subtle difference between this and the (carefully rejected) statement that Jodie's life is more valuable than Mary's.
35. See further pp.521-522.
36. Supra p.519.
37. Supra p.518.
38. op. cit. at 1052.
39. Stephen said that the "extent of this principle is unascertained" in his Digest of the Criminal Law (4th edn, 1887).
40. For a useful discussion of his views, see G. Williams "Necessity" [1978] Crim.L.R. 128.
41. [1884] 14 Q.B.D. 273.
42. If this was indeed the decision in Dudley and Stephens, then it was approved by the House of Lords and extended to duress by threats in Howe [1987] 1 All E.R. 771, 777.
43. op. cit. at 1051.
44. Ibid.
45. See Professor Sir J. C. Smith, Justification and Excuse in the Criminal Law (Hamlyn, 1989) at 77-78.
46. Ashworth, Principles of Criminal Law (Oxford University Press, 1999) at 153-154.
47. Infra p.522 ff.
48. The majority judgments are brief and uncritical but nonetheless explicit upon this point: op. cit. at 1016 (per Ward L.J.), 1052 (per Brooke L.J.).
49. Children Act 1989, s.1(1). Ward L.J., op. cit. at 1009, takes the trouble to say that "it may seem unduly harsh on these desperate parents to point out that it is their child's best interests which are paramount, not the parents" (emphasis in the original).
50. op. cit. n.22 at 133 ff.
51. The same might be said of duress of circumstances, where another person's rights may also be sacrificed for those of others, but it is in cases of necessity, where the defendant does not hide behind the pressure of an emergency and indeed often seeks a declaration that his actions would be lawful, that the challenge to the supremacy of the legislature is most acute.
52. See Southwark LBC v. Williams [1971] 2 All E.R. 175.
53. Professor Glanville Williams spoke often of the dangers of "state necessity", which apparently used to be invoked for such purposes as torturing witnesses for their evidence, and for ad hoc extensions of powers of search or arrest. See "The Defence of Necessity" (1953) 6 Current Legal Problems 216 at 224-225, 230.
54. e.g., Articles 8, 10 and 11 of the ECHR all make provisions for actions which "are prescribed by law and are necessary in a democratic society in the interests of national security", etc.
55. op. cit. at 1017 (per Ward L.J.). Brooke and Walker L.JJ. each thought (at 1050, 1068) that Article 2 did not operate because the killing would not be "intentional" within the meaning of Article 2 but neither cited any authority for this conclusion.
56. R v. Bournewood Community and Mental Health NHS Trust, ex p. L, op. cit. n.20 at 297-298 (per Lord Goff).
57. See G. Williams, Textbook of Criminal Law (2nd ed. Stevens, 1983) at 295 ff.
58. cf. St. George's Healthcare NHS Trust v. S, op. cit. n.21; also supra pp.517-518.
59. op. cit. at 1016-1017.
60. See S. Uniacke Permissible Killing: The Self-defence Justification of Homicide Cambridge University Press 1994, especially at 157-166. It seems to me (though I do not pretend to know) that Uniacke would consider the present case to be on the "borderline of self-defence and necessity" (id. at 166).
61. supra p.521.
62. op. cit. at 1067.
63. op. cit. at 1054.
64. His Lordship said (bluntly, as he admitted) that Mary "is alive because and only because . . . she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie . . . Mary's parasitic living will be the cause of Jodie's ceasing to live", op. cit. at 1010.
65. It is fair to suggest that this question was not addressed in a fully open manner. Ward L.J. noted that Mary was living independently from her mother (op. cit. at 996) but this is only the standard test for distinguishing a human from a foetus. There is indeed some awkward authority which suggests that the child must be "breathing through its own lungs alone" (Rance v. Mid-Downs Health Authority [1991] 1 All E.R. 801, 817) and Ward L.J. dismissed this by observing that the Court did not relate its "observations" to conjoined twins. Of course, the same could be said of every other authority cited in the case. For his part, Walker L.J. seems grateful that the relevant counsel were prepared to concede that Mary was a human being and had been born alive (op. cit. at 1054).
66. Ward L.J. conceded that Mary was not acting "unlawfully", op. cit. at 1017, but thought that this was not determinative of a plea of self-defence. His Lordship did not have Article 2 in mind at this stage.
67. [1999] 1 F.L.R. 193.
68. I have already argued that Jodie's right to medical treatment might have to be balanced with the hurt done to her reluctant parents as well as with the right to life of Mary: supra p.522.
69. supra p.521.
70. See Professor J. C. Smith op. cit. n.45.