Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked Airplanes—Taking Human Life and the Defence of Necessity
| Date | 01 April 2006 |
| DOI | 10.1350/jcla.2006.70.2.147 |
| Published date | 01 April 2006 |
| Author | Michael Bohlander |
| Subject Matter | Article |
Children, Conjoined Twins and
Hijacked Airplanes—Taking
Human Life and the Defence of
Necessity
Michael Bohlander*
Abstract
Necessity is not a defence to murder. This principle has been
repeated ever since R v Dudley and Stephens. Behind the arguments put
forward in the debate lie the sanctity of life, the idea that one could not
weigh one life against another, the question as to who should be the one
to make that decision and that life as such was the highest good. But is that
really true? Has English law not subscribed already to the idea that it may
be permissible to take a human life in situations that are commonly
classified as duress, duress of circumstances or necessity? This article traces
the development of areas of law where necessity arguments and balancing
exercises play a role in the decision about the taking of human life, but
which are not usually looked at in depth when arguments about necessity
are exchanged.
Introduction
Necessity is not a defence to murder. This principle has been repeated
like a mantra ever since the times of R v Dudley and Stephens,1 the famous
case of the shipwrecked sailors who cannibalised a young cabin boy
because they would allegedly all have died if they had not eaten one of
their number. The same, according to R v Howe,2 applied to the defence
of duress, which in its more modern guise of ‘duress of circumstances’
tends to be confused and mingled with the concept of necessity. Behind
all the arguments that had raged in academic circles3 and sometimes in
the courts, lay the sanctity of life, the idea that one could not weigh one
life against another, the question as to who should be the one to make
* Professor of Law, Durham University; e-mail michael.bohlander@durham.ac.uk.
1 (1884) 14 QBD 273.
2 [1987] 1 AC 417.
3 See, e.g., only the following: K. Keywood, ‘Detaining Mentally Disordered Patients
Lacking Capacity: the Arbitrariness of Informal Detention and the Common Law
Doctrine of Necessity’ (2005) 13 Med Law Rev 108; I. Kugler, ‘Necessity as a
Justification in Re A (Children)’ (2004) 68 JCL 440; E. Wicks, ‘The Greater Good?
Issues of Proportionality and Democracy in the Doctrine of Necessity as Applied in
Re A’ (2003) Common Law World Review 15; D. Burnet, Case Commentary:
‘Conjoined Twins, Sanctity and Quality of Life, and Invention the Mother of
Necessity, Re A (Conjoined Twins: Medical Treatment)’ [2001] CFLQ 91; C. Elliott,
‘Murder and Necessity following the Siamese Twins Litigation’ (2001) 65 JCL 66, A.
Brudner, ‘A Theory of Necessity’ [1987] 7 OJLS 338; S. Gardner, ‘Necessity’s
Newest Inventions’ (1991) 11 OJLS 125; S. Uniacke, ‘Was Mary’s Death Murder?’
(2001) 9 Med Law Rev 9; R. Huxtable, ‘Separation of the Conjoined Twins: Where
Next for English Law?’ [2002] Crim LR 459; S. Michalowski, ‘Sanctity of Life: Are
Some Lives More Sacred than Others?’ (2002) 22 LS 377.
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The Journal of Criminal Law
that decision and that life as such was the highest good. But is that really
true? Has English law not subscribed already to the idea that it may be
permissible to take a human life in situations that are commonly classi-
fied as duress, duress of circumstances, or necessity?
This article traces the development particularly of areas of law where
necessity arguments and balancing exercises play a role in the decision
about the taking of human life, but which are not usually looked at in
depth when arguments about necessity are exchanged. Owing to the
intricacies of the problems involved, this article cannot but scratch the
surface, and none of the underlying philosophical issues are new. What
this article will do is take a wider look at legal decisions the English
legislature and/or courts have already taken, novel situations arising out
of recent history, and the consequences that may flow from them for the
object of our study. Due to the complexity of the topic, it is not intended
here to propose a solution, but merely add a voice to the concert of those
who demand a rapid solution from the Government.
We must begin by establishing some common ground so that the
discourse in the following exposition will not suffer from conceptual
misunderstandings.
1. Taking human life
When we talk about weighing life against other values, we will leave the
technical area of criminal black-letter law where there is a difference
between unborn and born human beings. This distinction is based on
historical reasons of offence classification and is artificial; it cannot hide
the fundamental moral truth that in all these cases we talk about a
human life that is at stake. Necessity arguments and balancing exercises
are based on moral value judgments just as much as on legal grounds, as
becomes clear in cases like Re A4 that will be looked at below.5 We will
not get drawn, either, into the side issue of how we decide when life
begins,6 because we will assume situations where life is unmistakably
present. Otherwise there would be no weighing exercise because there
would be nothing to weigh.
If we reach a certain conclusion for allowing the taking of born or
unborn life, then it stands to reason that normally this conclusion
should be transferable to the other ‘category’ of human life. In other
words, if we are allowed to kill an unborn human being for certain
reasons, then we should be allowed to kill an independent human being
for the same reasons. If an unborn child can be killed in an abortion
because it will have serious defects at birth, it is only logical that a doctor
4 [2001] 2 WLR 480.
5 See, however, Wicks, above n. 3. The author states at IV. (ii): ‘Although the law can
never be entirely separated from morality, moral acceptability is only a permissible
consideration if it informs the law, not if it is serving to overrule it’. I find that a
surprising statement to be made in the year 2003, with the Nazi regime and the
dissolution of the GDR behind us. Morality certainly would require each person to
overrule the law if the law said that Jews must be killed because they are Jews, or
if it required you to shoot at people trying to flee to West Germany.
6 The European Court of Human Rights has stated on this issue that there is no
European consensus anyway, see Vo v France [2004] 2 FCR 577, 79 BMLR 71.
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Taking Human Life and the Defence of Necessity
or mother should also be able to take such a decision 10 minutes after
the child has been born and the serious defects can undoubtedly be
ascertained. In the first case there may be no offence at all, if all the other
requirements of the abortion law have been followed, the second case
would be murder with no possibility of escaping criminal liability and a
mandatory life sentence under the current state of English law. The
instinctive abhorrence we feel at this comparison is exactly that—a
matter of instinct. It is not a logical conclusion. Not to equate unborn life
to independent life is one of the great fallacies which has created so
many problems in the criminal law. If we must not kill a grown man
who is seriously mentally handicapped and a burden to society, why
should we be allowed to kill an unborn child for the same reasons? I
hasten to add that this study is not meant to address the pros and cons
of abortion and euthanasia, but it is necessary to point out this discrep-
ancy in approach to human life at the beginning.
2. Prognostic uncertainty
We will not investigate the factual issue of prognostic difficulty, i.e. the
question of how a decision-maker will be able to know with sufficient
certainty the factual foundation based on which a weighing exercise
may become necessary. We are dealing with a problem of substantive
law and thus must assume that the decision-maker and the court called
upon to adjudge his7 decision have full insight into all the relevant facts.
Otherwise there would merely be a preliminary debate about issues of
prognostic probability and we would have to agree on a certain degree of
certainty, which again would not impact in the end on the substantive
question to be answered.
3. Prosecutorial discretion
This article will not examine the—often too easily adopted—evasive
argument about prosecutorial discretion. As is sometimes put forward in
connection with the Zeebrugge ferry disaster or the mountaineers’
cases, no right-minded prosecutor would ever open an investigation for
murder against any of the people involved, be it the one who pushed the
frightened man off the ladder so that the others could get out of the
sinking ship, or the mountaineer who cut his partner off the rope. It may
be that no prosecutor would charge anybody in these scenarios, but that
again is not the question the answer to which we are after. What needs
to be answered here is: could a prosecutor at all bring charges, or would
he run the risk of flogging a dead horse because the judge might direct
the jury to acquit on a submission of no case to answer under the
Galbraith8 test? Finally, what would be the guidelines against which a
prosecutor is to exercise his discretion? Would these guidelines not
themselves have to mirror the very questions that are so vexing in the
substantive law?
7 For the reason of crispness of expression, only the male pronoun has been used
throughout and is meant, where appropriate, to include the female counterpart,
too.
8 [1981] 1 WLR 1039.
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The Journal of Criminal Law
4. The democracy problem
The democracy problem under its headings of representative democ-
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ing the command of the law based...
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