This Essay will use necessity, duress, and self-defence to examine the case of the conjoined twins. Necessity is not however a defence to charges of theft or murder. This principle has been used since the time of 1 Dudley v Stephens (1884) 14 QBD 237; the Court rejected the idea of defence of necessity against a charge of murder. Both necessity and duress have been, developed as common law but also have strong limitations imposed upon them.
Necessity is available with the Jury’s consideration. The conditions have to be capable of showing that the defendant was constrained to break the law. The evidence has to be capable of showing that his action was remorseful and forced by normal human instincts.
Parliament put the defence of duress of threats on statutory basis: defence may be available if the defendant subjected to forcing commit a criminal act because someone was using direct force against him or another or threatening to do so. The Court has taken a matter of fact of the wards immediate as seen in the case of 2 Hudson and Taylor  2 QB 202, and 3 Abdul-Hussain and Safi  LR 750. In this defence and that of duress of circumstances, which have the same criteria, the fear must be one of death or grievous badly harm under section (18), 4Offence against the Person Act 1861. In 5 Shayler  EWCA1WLR 2026 case the Court of Appeal decided that the defences of both necessity and duress, as developed, were prima facie available under the 6 Official Secrets Act 1989.
In addition, these developments have been increasing fully aware that clear demarcations between these defences are highly problematic and difficult to distinguish them from the defence. For example, in 7 Symonds  LR 280,case, it was held that whether a defendant pleaded self-defence or duress circumstances did not affect the essence of the case. In 8 Re A ( Conjoined Twin ) EWCA CIV254, Ward LJ analysis was in terms of self -defence while Brooke LJ treated the situation as necessity and therefore, Robert Walker LJ considered the three categories of necessity, duress by treat, duress by circumstance and self-defence which are all described “probably instance of the potentially wider defence of necessity”.
Furthermore, this view could suggest a way forward for the future development of the law. If these defences could be regard simply as sub-specie of a broader necessity defence, it might be possible to collapse the distinction between them and introduce a new single defence. It would resolve the controversy to the extent to which necessity can be utilised as a defence and its relationship to duress of circumstances, whether a defence should be afforded involves a judgement about the culpability of defendant that means an assessment of the reasons for acting.
The House of Lords in case 9 Clegg [ 1995] 1 AC 482, has confirmed that there is not defence if defendant is justified in using excessive force. Their Lordships rejected an argument that if a defendant was charged with murder and has used excessive force in self-defence he should be convicted of manslaughter.
It needs to be considered if the 10Human Rights Act 1989 has changed the law. Article (2), protects the right of life. The Act requires public authorities including Courts to act with compatibility of the convention, unless they are prevented from doing so by statutes. This means that the Courts have their own primary statutory duty to give effect to the convention unless a statute positively prevents this.
According to F.Leverick, English law is contrary to Article (2) of the 11 European Conventions on Human Right 2002. The reason for this claim is that in following the reasonable mistaken defendant to escape punishment in this way English Law fail to respect the right of life of the person who, though no fault of their own is mistaken for an attacker that killing in self-defence is not an intentional killing, article (2) does not apply.
The argument against this view is that Criminal Law is merely stating that a defendant who kills believing himself to be under attack does not deserve punishment.
On Friday 22nd September, the Court of Appeal decided unanimously that elective surgery to separate the conjoined twins Mary and Jodie could go ahead despite the fact that the weaker twin, Mary, would inevitably die. There was no need to wait for an emergency.
Lord Justice Ward had decided that if the doctors performed the operation and Mary were to die they would intentionally killed Mary, which would be murder.
Jodie and Mary were born to parents of devout Roman Catholic faith. The medical team looking after the twins wished to separate them, in the cognition that Mary would die as a direct result of the operation. The twin’s parents, however, would not sanction the operation. In their eyes, both twins were God’s creatures, each having a right to life. They could not sanction the shortening of Mary’s life in order to prolong that of Jodie. If it was God’s will that they die, then so be it.
Johnson Lord Justice ruled that such an operation would not be unlawful because in his view the projected operation represented a ‘withdrawal of blood’, a situation analogous to the withdrawal of feeding and hydration in Airedale 11 NHS Trust v Bland . The parents appealed on the grounds that Johnson J was wrong in finding that the proposed operation was in either Mary’s or Jodie’s best interests, and that the operation should not be held legal.
Ward L J, Brook L J, and Walker L J of the Court of Appeal carefully considered compliance from all interested parties, and came to the same conclusion – that Johnson J was correct – the separation would not be unlawful. Nevertheless, they came to this decision via differing routes.
All three Appeal Court judges recognized that Jodie’s interests should persist over Mary because Mary was “self-designated for a very early death.” Having decided that there still needed to be a legal basis on which the operation could carry on even though it would involve the killing of Mary.
In English law, it is unlawful to kill an innocent person in order to save another. Each judge found a different way to give permission to proceed to the operation whilst still trying to retain this principle.
In the sanctity of life principle, the law of murder is based on the sixth commandment that “you shall not murder”. The Bible recognises the crucial difference between one who deliberately kills and “one who kills his neighbour accidentally, without malice planned” The concept of intention is central to the English law of murder.
Lord Justice Brooke argued that the “sanctity of life principle” clearly emanated from the Judaeo-Christian tradition. He argued that the law is still interested to protect the sanctity of life from birth to death, even if has deceased person from this principle before birth by permitting abortion.
The health authority brought the case in the High Court because doctors wanted to go ahead with the operation against the wishes of the parents. Under English law, only a court can make this legal. Parents always have to give consent to their child receiving medical treatment, except in the extraordinary circumstance in which a court overrides their objections. Very often, the medical team accepts the views of the parents. However, as Lord Justice Ward said in his judgement, “In law the parental view is not sovereign.”
The parents, objections were perfectly rational. They were firmly on the Judaeo-Christian tradition that underpinned the formation of the law itself. The opinion of parents could well have been the determining factor for a medical team. Under the 12 Children Act 1989, the State should intervene to protect the child against clear abuse and to protect the rights of the parents.
13 Under the Homicide Act 1957, interdiction of intentional killing was recognised by Ward L J as being the cornerstone of law and social relationships and is of highest moral value.
In essence, the defence of the doctrine of necessity is of a similar species to that of duress, and has been termed duress of circumstances. The defence of duress itself has been not approved where the charge is murder. There is a difference between them but Lord Hailsham of St Marylebone LC said in 14 Howe [ 1987 ] 1 AC 471 “ This however, is in my view a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threat. I cannot see that there is any way in which a person, of ordinary fortitude can be excused from one type of pressure on his, will rather than the other.”
In DPP for 15 Semester V Sullivan  A.C.156, the case reached the House of Lords, accepted by majority of three to two, where it was decided that duress by threats should be available as a defence to an accomplice to murder, reflecting the law’s compassion towards a person placed under such extreme pressure. However, the 16 Privy Council in Abbott v The Queen  AC 755, held that the defence of duress was unavailable AS defence to the principal of murder. “It was stated that this position had never been argued in English Court”.
Sir James Stephens stated that the doctrine of necessity could be represented in the following manner; an act which would otherwise be a crime may in some cases, be excused if the person accused can show that it was done only, in order to avoid consequences which, could not otherwise be avoided. And which if they had followed would have inflicted upon him or others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary forthat purpose, and that the evil inflicted by it was not disproportionate to the evil avoided”.
17 The Infant Life (preservation) Act, 1929, authorises the taking of the life of a child up to the birth, when it will have an existence independent of the mother, the killing is done in good faith with intention of saving the life of the mother. Even if the child is capable of being born alive, for example, has reached the necessary age in utero and does not suffer from clearly lethal defect. Taking a Human life in order to save another destroying the life of a child, the penalty for child destruction is mandatory life imprisonment.
The law did not ending there. In 1967 Parliament passed 18 the Abortion Act 1967. Defence of necessity against a charge of murder cannot be overestimated. The law clearly permit killing an unborn child who is free of defects of any kind and capable of being born alive. In addition, came the case of the conjoint twins Mary and Jodie, where the Court of Appeal allowed the killing of one twin who was not capable of surviving on her own but her sister could survive. The Court based this decision on a narrow application of necessity in medical cases.
In conclusion, The Lord Justices were at pains to stress the uniqueness of the case of Mary and Jodie. In the case of Mary and Jodie the principle is that, the life of Mary was sacrificed. Moreover, her sister Jodie could benefit from treatment that would supply her with normal life. Mary’s death was held to be intentional and would be considered murder, unless there was some legal exception to the rule that one must not kill another person in being or some other valid self-justification. It was held that, the doctrine of necessity provided the most acceptable legal justification for Mary’s death.
- Dudley v Stephens (1884) 14 QBD 273
- Hudson and Taylor  2QB 202
- Abdul-Hussain v Saf  LR
- Shayler  EWCA Crim,  1WLR 2026
- Symonds  LR 280
- Re A ( Children ) [ 2000 ] 4 All ER961; [ 2001 ] 1FLR; [ 2001 ] 57 BMR1
- Howe  1 AC 471 at 429
- Clegg [ 1995] 1 AC 482
- NHS Trust v Bland .
- Semester V Sullivan  A.C.156
- Abbott v The Queen  AC 755
- Offence against the Person Act 1861
- Official Secrets Act 1989
- Human Rights Act 1998
- European Conventions on Human Right 2002
- Children Act 1989
- Under the Homicide Act 1957
- Infant Life (preservation) Act 1929
- The Abortion Act 1967
- Ashworth, A. (2003).Principle of Criminal Law (4th ed).New York: Oxford Express.
- Clarkson, C.M.V. (2004). Necessary Action: A New Defence. The Journal of Criminal Law. Retrieved December 17, 2007.
- Roe, D. (2005).Criminal Law (3rd ed).London: Copyright.
- Jonathan Herring. (2004). Criminal Law Case and Material. New York: Oxford Express.
- Machael Bohlander. (2006, January 13) Taking Human Life and Defence of Necessity. The journal of Criminal Law. Retrieved December 17, 2007.
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