Necessity can never be a defence for murder
Written by Paul Powlesland (A2)
The defence of necessity has
been available in specific instances since the early days of the English legal
system. For instance it was felt to be justifiable to pull down a house to stop
as fire spreading to other houses, or for a prisoner to escape from jail if it
was on fire. However, in recent times the courts have been very unwilling to
allow the defence of necessity to be used in a more general way and this is
especially so with regards to murder. In this essay I shall be examining
whether the law currently allows necessity as a defence to murder and, if not,
what ways exist to avoid the precedent that states this.
The leading case
with regards to the defence of necessity and murder is that of R v Dudley
and Stephens (1884)[1].
In this case defendants, following a shipwreck, had been adrift at sea for a
number of days with no food and water and so they decided to kill and eat the
cabin boy who had become so weak that he was soon to die anyway. However, after
being rescued four days later, the men were taken back to England, where they
were charged with murder and subsequently convicted. Their appeal to the
Divisional Court, in which they argued the defence of necessity, was rejected,
as the court was not prepared to allow a defence in such circumstances. Lord
Coleridge stated that if a defence were allowed in such circumstances, it might
³be made the legal cloak for unbridled passion and atrocious crime.² While
sympathising with the defendants, Lord Coleridge then went onto state that
judges were:
³often
compelled to set up standards we cannot reach ourselves and to lay down rules
which we could not ourselves satisfyIt is therefore our duty to declare that
the prisoners¹ act in this case was wilful murder [and] that the facts as
stated in the verdict are no legal justification of the homicide.²[2]
The precedent given in the
case of Dudley and Stephens, namely that necessity can never be a defence to
murder, as stated in the statement in question, has been followed for the last
120 years. This is despite the fact that the precedent only came from the
Divisional Court and, as such, it could have been overruled by the Court of
Appeal or the House of Lords if either court had so wished to. Although the
House of Lords has supported the judgement in Dudley and Stephens in a number
of cases (for instance R v Howe and Bannister (1987)[3]),
the very nature of these comments must mean they were made obiter dicta and, as
such, they are only persuasive, rather than binding precedent for other courts.
Therefore, it is conceivable that although the current law states (as a result
of Dudley and Stephens) that necessity is no defence to murder, that this case
could be overruled by either the Court of Appeal or House of Lords, due to
their higher position in the court hierarchy than the Divisional Court.
As well as
overruling Dudley and Stephens, it might also be possible to distinguish the
case. This is because, in Dudley & Stevens there was a problem of selection
as there was a choice between whether the men or the cabin boy should die.
There was no legal way in which selection of the one to die could have been
made (the drawing of lots, as in the American case of US v Holmes (1841),
was disapproved of by the Divisional Court obiter dicta). As Glanville Williams
notes that ³It was no more necessary to kill the boy than one of the grown
men.² However, a case might come before the courts in which there is no problem
of selection, as, for example, where a mountaineer severs a rope seconds before
he is pulled off a cliff by the climber he is tethered to. In such a case there
is no problem of selection, as the only person who could die is the one who has
already fallen off the cliff and, as such, it is possible that this difference
in facts could mean that Dudley and Stephens is distinguishable and that
necessity could be used as a defence to murder.
Dudley and Stevens
aside, some academic lawyers (for instance Professor Smith) have argued that
the recent case of Re A (children) (2000)[4]
has, (at its widest interpretation) overruled Dudley and Stevens, or has (at
its narrowest interpretation) at least meant that the courts would be more
willing to except the defence of necessity. The case of Re A concerned
conjoined twins Mary and Jody, and the facts were that if Mary was separated
from Jody, then she would die, but if the twins were not separated then both of
them would die. The doctors in the case decided to apply to the courts for
permission to conduct the operation, with the Court of Appeal ruling in favour
of the doctors, citing the existence of utilitarian necessity. The judges
explained in the ratio that the three requirements for the defence of necessity
had been fulfilled. These requirements are:
³1) The act was necessary to
avoid inevitable and irreparable evil.
2) No more was planned to be
done that was reasonably necessary for the purpose to be achieved.
3) The evil to be inflicted
was not disproportionate to the evil to be avoided.²
Although some academics like
Professor Smith have argued that ³the decision is, whether it likes it or not,
a precedent, and a very important one for the criminal law²[5]
I believe there are two reasons why the decision in Re A does not have an
effect on the ratio of Dudley and Stephens, which stated that necessity is no
defence to murder. Firstly, the case was a civil one, where doctors came to the
courts to get permission for an operation, rather than the criminal case that
results from a charge of murder. The fact that the case was a civil means that
the decision should not be used as precedent for criminal cases, due to the
difference in the burden of proof, the format of the proceedings and the fact
necessity was not raised as a defence
per se in Re A (which would be difficult because no crime had yet been
committed!), but merely as a reason
for allowing the operation. The second reason that the decision in Re A is
unlikely to form a precedent to overrule the fact that necessity is no defence
to murder, is that the judges in the Court of Appeal stated obiter that this
exact thing should not happen. This is because in their judgements, the judges
made clear that although the defence of utilitarian necessity was used, the
case was decided on its own exceptional facts and that, as such, no precedent
involving necessity and criminal law (and, therefore, murder) was created by
the case. These are the reasons why I believe the case of Re A, though
important in the development of necessity, does not have any relevance to
criminal law and, therefore, the precedent from Dudley and Stephens, stating
that necessity can never be a defence to murder, still stands.
The final thing that
must be investigated in order to analyse the statement in question, is the
defence of duress of circumstances. The origins of this defence began with the
case of R v Willer (1986)[6],
in which the defendant was forced to drive recklessly in order to avoid a gang
who were threatening to kill him. However, he was convicted after the judge
refused to allow the defence of necessity to be put before the jury and the
defendant appealed to the Court of Appeal who decided that a new defence, that
of duress of circumstances¹, should be allowed. In the later case of R v
Conway (1989)[7] it was
decided that duress of circumstances existed:
³Where
the defendant was constrained by circumstances to drive as he did to avoid
death or serious bodily harm to himself or another person.²
The court went on to state
that:
³This
approach does no more than recognise that duress is an example of necessity
[and] whether duress of circumstances¹ is called duress¹ or necessity¹ does
not matter.²
From this it can be seen that
although the defence of necessity may not be widely recognised within English
law, exactly the same concept is recognised under another term, namely duress
of circumstances. This could have meant that necessity may not be a defence to
murder, but the same concept (under the name duress of circumstances) would be
a defence. However, in the case of R v Pommell (1995)[8]
it was specifically stated that defence of duress of circumstances was
available for all crimes except murder, attempted murder and some forms of treason.
This would seem to suggest that even under the name duress of circumstances¹
the defence of necessity can never be a defence to murder.
However,
I believe there might be a way to avoid this restriction on the use of the
defence of duress of circumstances in cases of murder, which was laid down in
Pommell. This is because, the rules stating that the defence of duress of
circumstances cannot be used for charges of murder or attempted murder were
taken from the defence of duress of threats. Thus in the cases of R v Howe
and Bannister (1987)[9]
and R v Gotts (1992)[10]
it was decided that a defence of duress of threats was not available to charges
of murder or attempted murder, because, as authors as far back as Hale and
Blackstone have stated, ³a man under duress ought rather to die himself than
escape through the murder of an innocent.² However, it could be possible to
distinguish duress of circumstances from duress of threats and therefore the
precedent that states that duress of circumstances cannot be a defence to
attempted murder might be avoided. This distinguishing could be possible due to
the differing nature of the two defences. For instance, it is right that duress
of threats should not be a defence to a charge of murder, because if someone
puts a gun to another man¹s head and orders him to kill another person, he
should (as Blackstone mentions above) die himself rather than escape through
the murder of an innocent. However, with regards to duress of circumstances the
scenario could arise in which, in order to save an entire town from a dam that
is about to burst, a neighbouring valley must be flooded in which there is only
one man. In this situation, it would surely be better to kill one man in order
to save thousands and as such, the person who committed the action should, I
believe, be afforded the defence of duress of circumstances, even though the
charge against him is one of murder. Thus, I believe it would be possible to
distinguish duress of threats and duress of circumstances (due to the completely
different circumstances that can be involved in the two defences) and therefore
avoid the restriction in Pommell which states that duress of circumstances
cannot be a defence to murder. If this was done, then although it would be by a
different name (i.e. duress of
circumstances) it would be fair to say that that concept of necessity would be a defence to murder.
In
conclusion, I believe the statement in question is correct and necessity is no
defence to the charge of murder due to the precedent from the case of Dudley
and Stephens. Furthermore, even under the name of duress of circumstances¹ it
would still be correct to say that necessity is no defence to murder, due to
the restrictions in the case of Pommell, which state that the defence of duress
of circumstances is not available for the crime of murder. However, there are a
number of ways in which both the precedent from Dudley and Stephens (which
states that necessity is no defence to a charge of murder) and the restriction
in Pommell (which states that duress of circumstances cannot be a defence to
murder) might be avoided and I have outlined these ways in my essay. Overall,
therefore, the law at the current time agrees with the statement in question,
in that it states that necessity is no defence to murder.
Paul Powlesland
March 2004.