Necessity as a Justification in Re A (Children)
| Date | 01 October 2004 |
| DOI | 10.1350/jcla.68.5.440.43222 |
| Published date | 01 October 2004 |
| Subject Matter | Article |
Necessity as a Justification in
Re A (Children)
Itzhak Kugler*
Abstract In criminal law theory, it is common to distinguish between the
defence of necessity as a justification and the defence of necessity as an
excuse. However, it is sometimes said that English law does not clearly
distinguish between justification and excuse. In Re A (Children) the Court
of Appeal permitted the separation of conjoined twins although the
separation would lead to the immediate death of one of the twins. In his
judgment, Brooke LJ invoked the defence of necessity and appears to be
ready to base his decision on necessity as an excuse. It is, however,
submitted in this article that Brooke LJ’s decision should be interpreted as
having been based on necessity as a justification. Consequently, it cannot
be said any longer that English law does not distinguish between justifica-
tion and excuse.
This article considers the judgment of the Court of Appeal in the case of
the conjoined twins (Re A (Children) (Conjoined Twins: Surgical Separa-
tion))1on the issue of the defence of necessity as a justification. In his
judgment, Brooke LJ appears to be ready to base his decision, that the
operation to separate the twins was lawful, on the defence of necessity
as an excuse. The discussion below asserts that the use of the defence of
necessity in this case must be interpreted as founded on justification.
Jodie and Mary were conjoined twins, joined at the lower abdomen.
Separation of the twins would lead to the death of Mary because her
lungs and heart were too deficient to oxygenate and pump blood
through her body. Had she been born a singleton, she would have died
shortly after birth. She remained alive because a common artery enabled
Jodie, who was stronger, to circulate the blood for both of them.
Separation would require the clamping and then the severing of the
common artery. Within minutes of doing so, Mary would die. The
parents did not consent to the separation. The doctors were convinced
that if they separated the twins they could save Jodie. Without the
operation it was thought that both twins would die within three to six
months. The cause of death would be heart failure since Jodie’s heart
would sooner or later fail. The hospital therefore sought a declaration
that the operation might be lawfully carried out. The judge granted that
declaration and the parents appealed against that order.2
The Court of Appeal dismissed the appeal and decided that the
operation would be lawful, in spite of the fact that it would kill Mary.
The court refused to classify the proposed operation as an omission and
held that it would constitute a positive act.3In spite of that, it permitted
the doctors to carry out the operation. An essential part of the reasoning
of Robert Walker LJ was that the proposed operation would be not only
* Faculty of Law, The Hebrew University, Jerusalem.
1 [2000] 4 All ER 961 (Ward, Brooke and Robert Walker LJJ).
2 Ibid. at 969.
3 Ibid. at 1003–4, 1027, 1061–2.
440
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