Essay
LA2-5 - "Necessity
is never a defence to murder."
(In answering
this essay question you should show analytical thought and demonstrate all
aspects of the law associated with the doctrine of judicial precedent)
Written by Edwin Ackers (March 2008)
Situational circumstances have been known to force individuals to act to prevent a worse evil from occurring. Surely, it is against all of societyÕs morals to prosecute an individual in a situation where they are not morally to blame and it was necessary for them to act in the way they did?
The defence of necessity, at the surface level, fills the gaping hole in the letter of the law. However, the courts have been reluctant to recognise necessity as a defence in its own right. This essay will analyse the statement that Ônecessity is never a defence to murderÕ with detailed reference to precedent set by cases in this area of law.
The doubt of the extent of this defence in English Law is reflected clearly through the extent to which the Commission show their uncertainty. In drafting the Criminal Code they stated that Ôwe are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defenceÕ. In light of this, it is clear that the Commission are Ôsitting on the fenceÕ.
Cases involving the defence of necessity are very scarce and are just as ambivalent. This essay will be referring to the cases of Dudley and Stephens (1884), Re A Children (2000), R v Bourne (1939), Shayler (2002), Howe (1987) and Gotts (1992).
Dudley and Stephens (1884)
The case of Dudley and Stephens (1884) is the most prominent criminal case in the area of the law discussing necessity.
The facts of the case consist of two defendants, another man and a 17-year-old cabin boy, who had been adrift in the ocean in an open boat, 1600 miles from land. They had been without food for eight days and without the supply of water for six days. The defendants decided to kill and eat the cabin boy, who had become very weak. A passing ship passed by four days later and rescued them. On arriving back to land the men were subsequently charged with the murder of the cabin boy. The jury did have sympathy for the men due to the undesirable shipwrecked situation. Even though they decided that the defendants had indeed killed the boy, they wished to record a special verdict. This recognised that the men had little hope of an early rescue and would have probably died if they had not committed the act. It was also recognised that the boy would have died anyway.
The Divisional Court was not prepared to allow a defence in these circumstances. Lord Coleridge stated that the judges were Òoften compelled to set up standard we cannot reach ourselves and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change and weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisonersÕ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murderÓ. This statement simply meant that although the judges themselves felt sympathy for the suffering defendants, the law must stay certain and strong. Therefore it was held that Ônecessity is no defence to murderÕ.
Re A (Conjoined twins) (2000)
Mary and Jodie were born as conjoined twin. Jodie was keeping Mary alive by circulating blood to her too, because MaryÕs body was not capable of keeping herself alive. Their parents refused to consent to an operation to separate them. Doctors applied for a declaration to make the operation lawful, to separate the twins, even though Mary would certainly die. The doctors pleaded that it was necessary. The Court of Appeal gave the declaration. The three judges gave different reasons for why the operation would be lawful.
Lord Justice WalkerÕs reasons were firstly that the operation is in the Ôbest interests of each of them.Õ Although, personally I believe that Walker LJ has created a flaw in his own argument, as it is certainly not in the best interest of Mary to die. His second point was that the operation would Ôgive Jodie a reasonably good prospect of a long and reasonably normal lifeÕ. Thirdly, the Ôcontinued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at allÕ. Walker LJÕs final reason was that the Ôthe proposed operation would not be unlawful. It would involve the positive act of invasive surgeryÕ. Walker LJ seemed to be of the opinion that the operation would be lawful, wither because there was no intention at all to kill Mary or, at any rate, no murderous intent on the part of the doctors. However, I would strongly disagree with this point as the doctors intended to cut away Mary and intended to kill her.
Lord Justice Ward and Lord Justice Brooke believed that following the case of Woolin (1998), an intention to kill was present and that the operation would therefore be considered to be a murderous act unless a defence could be found. Ward LJ discussed several defences and favoured private defence.
Brooke LJ preferred the defence of necessity and said that the defence of necessity would be available to the doctors if they had not applied for a declaration and were charged with the murder of Mary. He approved four principles of the defence of necessity as set out in StephenÕs Digest of Criminal Law (1883). Firstly the act was done only in order to avoid consequences, which could not otherwise be avoided. Secondly, those consequences, if they happened, would have inflicted inevitable and irreparable evil. Thirdly, that no more was done than was reasonably necessary for that purpose. Fourthly, that the evil inflicted by it was not disproportionate to the evil avoided. Brooke LJ believed that all these principles were fulfilled in this case. In addition, Brooke LJ stated, Òthe doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied themÓ. Therefore, Brooke LJ dismissed the appeal as he believed it was necessary, as did Walker LJ and Ward LJ although they took differing routes.
On surface value, it appears as though the law has changed and the binding precedent of today is that necessity can be a defence to murder. However, one must not overlook the fact that Re A Children (1990) is civil case and there was no charge of murder it was simply an application to the court. Therefore, it is not binding precedent; it is simply a form of persuasive precedent. Although, academics such as Sir John Smith believe that Ôthe decision is, whether it likes it or not, a precedent, and a very important one for the criminal lawÕ.
R v Bourne (1939)
This case involved a young girl, not quite 15 years of age, who was pregnant as the result of rape. A surgeon, of the highest skill, openly, in one of the London hospitals, without fee performed the operation of abortion. He was charged under the Offences against the Person Act 1861, s 58, with unlawfully procuring the abortion of the girl.
The defence of necessity was allowed in this instance. Although, this case is not that significant as the Abortion Act (1967) has adjusted the law in this area.
However, one must not overlook the fact that the courts have allowed the defence of necessity for the killing of a foetus similar to the case Re A Children (2000).
Shayler (2002)
This case involved a defendant who was a former member of the British Security Service (MI5). He was charged with disclosing confidential documents in breach of the Official Secrets Act (1989). He claimed the defence of necessity. Both the Court of Appeal and the House of Lords upheld his conviction. The important part of this case was not the fact that necessity was not allowed as a defence but what the judges said. The Court of Appeal held that the tests for duress of circumstances and/or necessity were that the act must be done only to prevent an act of greater evil. Secondly, the evil must be directed towards the defendant or a person or persons for whom he was responsible. Thirdly, the act must be reasonable and proportionate to the evil avoided. These tests are very similar to the tests set out in Re A (Children) (2000). However, the difference is that for the defence of necessity there is no requirement for the evil to be directed towards the defendant or a person or persons for whom he was responsible.
Howe (1987) and Gotts (1992)
The case of Howe (1987) involved a defendant, with others, who took part in torturing and abusing a man who was then strangled by one of the others. On a second occasion another man was tortured, abused and then strangled by the defendant. The defendant claimed that he took part in the killings because of threats to him. The trial judge ruled that duress was available to the defendant for the first killing where the defendant was only a secondary party to the killing, but that it was not available for the second killing where the defendant was a principal offender. The Court of Appeal ruled that this was correct but the House of Lords held that duress was not available as a defence for either murder. Lord Hailsham said in his judgement: ÔI do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggestÉthat the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.Õ The House of Lords also said in obiter that they thought the defence should not be available on a charge of attempted murder.
The case of Gotts (1992) involved a defendant who was a 16-year-old boy whose parents were separated. The defendant was threatened with violence by his father unless he agreed to stab his mother. The defendant attacked his mother but did not kill her. He was convicted of attempted murder. The Court of Appeal upheld his conviction on the basis that the defence of duress was not available to him, as they followed the obiter statement from Howe (1987).
From these two cases it shows the Court of Appeal and House of LordÕs stance upon the letter of the law for duress of threats being available for murder and completely overruling the previous decision made in the case of Lynch (1975).
From the cases discussed above, the impression given is a mixed and uncertain list of cases with judges not paving a clear way. However, Dudley and Stephens (1884) does make it clear that necessity is not a defence to murder. Although, it could be argued that this case was in 1884 and was one of the first cases to involve the defence of necessity. The law has developed significantly since 1884 and the case of Re A Children (2000) has convinced many academics that the defence of necessity would be available to a charge of murder. The case of Shayler (2002) has also influenced many academics with the belief that necessity could possibly be used against a charge of murder in the future.
Personally, I feel that the word ÔneverÕ is an absurd word in light of the context. The word means Ônot ever, not at allÕ – [Oxford English Dictionary]. How can an individual make a statement with the view that it will never happen when they have no knowledge of future case circumstances or situations that the courts have never come across before?
In the case of Dudley and Stephens (1884) Lord Coleridge stated that if necessity was once allowed in such circumstances, it might Òbe made the legal cloak for unbridled passion and atrocious crimeÓ. Lord Coleridge means by this statement that if necessity was allowed for murder in the case, then binding precedent would be set upon the court and the defence of necessity would be brought forward by too many defendants, as Lord Coleridge exclaims that it would be too easy to raise and too difficult to disprove. By allowing the defence it would open the ÔfloodgatesÕ to most defendants.
However, one would beg to differ on the view that all defences can be seen as easy to raise and difficult to disprove and secondly there may be circumstances where necessity must be allowed for a charge of murder.
For illustrational purposes here is an example that indicates where the defence of necessity must be allowed for a charge of murder, otherwise the public would surely be in uproar and the judicial system bring itself into disrepute.
Helen is walking her dog on the side of the Mount St.Helens. She begins to feel movement beneath her feet and to her distress the volcano is erupting. As lava begins to flow down the valley behind her she runs to the side of the valley to safety. She now overlooks a dilemma. There is a fork in the valley, one route the lava could take is straight into the village consisting of 10,000 residents all oblivious and would certainly all perish. The alternative route the lava could take is through the forest. However, as she scans the forest, she sees her ex-husband who had left her for another woman just the week before. However, he is on the phone and cannot hear Helen screaming to warn him to run out of the forest and instead just smiles thinking that she is shouting abuse and carries on walking through the forest. Helen can push a boulder into the valley on either side of the fork to block the route and divert the lava. Helen chooses to block the route leading to the village. The village stays safe, however her ex-husband dies as does his greyhound. Helen is congratulated by the village by her brave activity and is somewhat an iconic model. However, the police arrest her on the murder of her ex-husband.
Surely, saving the lives of 10,000 people to the unfortunate death of her ex-husband is morally correct and therefore the defence of necessity would be available.
If this scenario was a real case the courts could simply distinguish from the case of Dudley and Stephens (1884). The courts have the power to distinguish to allow for them to make the best decision in light of varied circumstances. I believe that the House of Lords should not use the Practice Statement on the judgement/binding precedent set in Dudley and Stephens, because that would allow the Ôfloodgates to openÕ. Instead the law should evolve case by case and the judges should take into consideration the circumstances of that particular case. With only one criminal case involving the defence of necessity raised against murder, it does not mean that forever onwards the rule will apply, as circumstances will most likely be different to a cabin boy being eaten 1,600 miles from land.
Although it could be argued that, the law on duress has taken a firm line, which can be seen in Howe and Gotts, and the courts see necessity as a very similar defence. therefore it would be unlikely that necessity would be changed to allow it for murder as the defence of duress would then be questioned. Lord Woolf once stated in the case of Shayler (2002) that Ôthe distinction between duress of circumstances and necessity has, correctly been by and large ignored or blurred by the courts. Apart from some of the medical cases like Re F (1990), the law has tended to treat duress of circumstances and necessity as one and the same.Õ This indicated that the judges feel that duress and necessity are very similar therefore they might stick to the line followed by duress that the defence is not available to murder.
In conclusion, I disagree entirely with this statement that Ônecessity is never a defence to murderÕ because the word ÔneverÕ is absurd because future case circumstances cannot be analysed until they arise. Therefore, necessity could well be a defence to murder in the future because circumstances, such as the illustration discussed earlier, would force the courts to allow the defendant the defence of necessity, as the potential consequences of social uprising and judicial disrepute would be too detrimental.
- Criminal Law For A2 – Jacqueline Martin
- Criminal Law [3rd Edition] – Diana Roe
- www.bailii.org
- www.lexisnexis.com