"To prolong Mary's life ... would be very seriously to her disadvantage". 7.7 Act or omission in this case? 7.8 Is the course of action one which can be characterised as not continuing to provide the patient with treatment which will prolong the patient's life? 7.9 Conclusion as to Mary's best interests. 8. On the horns of a dilemma: what does the court do now. 9. Giving due weight to the parents' wishes. 9.1 The parents and the courts. 9.2 The role of the court: reviewer or decision-maker? 9.3 The weight to be given to these parents' wishes. 10. How is the balance to be struck. 11. Conclusion on the family law aspects of this case. IV The criminal law. 1. Introduction. 2. Is there some immunity for doctors. 3. Murder. 4. Intention. 4.1 The proper test. 4.2 The doctrine of double effect. 5. Causation. 6. Killing. 7. Unlawfully. 7.1 The search for settled principle. 7.2 Necessity. 7.3 Duress. 7.4 The policy of the law. 7.5 A legal duty? 7.6 Effect of a conflict of duty. 7.7 Offending the sanctity of life principle. 8.Conclusion. V Enter the Human Rights Act 1998 VI Conclusion. LORD JUSTICE WARD: I Introduction to the Case of the Siamese Twins. In the past decade an increasing number of cases have come before the courts where the decision whether or not to permit or to refuse medical treatment can be a matter of life and death for the patient. I have been involved in a number of them. They are always anxious decisions to make but they are invariably eventually made with the conviction that there is only one right answer and that the court has given it. In this case the right answer is not at all as easy to find. I freely confess to having found it exceptionally difficult to decide - difficult because of the scale of the tragedy for the parents and the twins, difficult for the seemingly irreconcilable conflicts of moral and ethical values and difficult because the search for settled legal principle has been especially arduous and conducted under real pressure of time. The problems we have faced have gripped the public interest and the case has received intense coverage in the media. Everyone seems to have a view of the proper outcome. I am very well aware of the inevitability that our answer will be applauded by some but that as many will be offended by it. Many will vociferously assert their own moral, ethical or religious values. Some will agree with Justice Scalia who said in the Supreme Court of the United States of America in Cruzan v Director, Missouri Department of Health (1990) 110 S. Ct. 2841, 2859:- "
"normal reactions and normal development as expected for a child of her age and gestation"
"... is not capable of separate survival because of grossly impaired cardiac performance and no useful lung function, with no prospect of recovery."
"[This] may need to be considered in the event of an acute catastrophe such as Mary's death, the development of progressive heart failure for Jodie, or the development of a life threatening condition ... The prognosis for Jodie would be markedly reduced and mortality highly likely, particularly following the death of Mary. For Jodie the prospects of urgent separation are less good (60% mortality) when compared with those of a planned elective separation (6% mortality). Clearly, for Mary, separation will always mean death. If it is possible it would be preferable to plan for an elective separation than to avoid "urgent" procedures."
"... she just screws her face up in what appears a painful sort of way, and that is the only facial expression I see her make, and that is not an "irritant stimulation, it's really gentle, it's patting her or stroking her head"
"I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child.""
"To prolong Mary's life ... would be very seriously to her disadvantage."
"At one end of the spectrum is the case of two fully grown, fully equipped bodies with a minor connection which is easy to remove, leaving two complete individuals who could survive into old age. At the other end is one complete body with a small number of extra parts which could be removed to leave just one complete individual. Between these two extremes are a range of gradations including two fairly complete bodies which are so heavily fused that they cannot be separated; two bodies which can be separated but at a substantial risk; and two which can be separated with the inevitable consequence that one of them will die."
"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law….."
"Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm….."
"The arguments presented in this submission stem from the belief that God has given to humankind the gift of life, and as such it is to be revered and cherished. Christian belief about the special nature and value of human life lie at the root of the western humanist tradition which continues to influence the values held by many in our society and historically underpins our legal system."
"Human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission"
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law"
"It must also be borne in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention. ... Together with Article 3 ["
"unlawfully", "kills", "any reasonable creature", "with intent to kill"
"if the childe be born alive, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natur a, when it is born alive"
"In ' The Sanctity of Life and the Criminal Law' (1958), Professor Glanville Williams stated at p 31: 'There is, indeed some kind of legal argument that a 'monster' is not protected even under the existing law. This argument depends upon the very old legal writers, because the matter has not been considered in any modern work or in any court judgment.' After discussing the meaning of the word 'monster' (which might originally have connoted animal paternity) he states at pp 33-34: 'Locked (Siamese) twins present a special case, though they are treated in medical works as a species of monster. Here the recent medical practice is to attempt a severance, notwithstanding the risks involved. Either the twins are successfully unlocked, or they die' (emphasis added). It is implicit in this analysis that the author is of the view that 'Siamese' twins are capable of being murdered and the amicus curiae supports this view. Advances in medical treatment of deformed neonates suggest that the criminal law's protection should be as wide as possible and a conclusion that a creature in being was not reasonable would be confined only to the most extreme cases, of which this is not an example. Whatever might have been thought of as 'monstrous' by Bracton, Coke, Blackstone, Locke and Hobbes, different considerations would clearly apply today. This proposition might be tested in this way: suppose an intruder broke into the hospital and stabbed twin M causing her death. Clearly it could not be said that his actions would be outside the ambit of the law of homicide."
"Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith – ….. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be severely handicapped"
"I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding the treatment or care or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg v Cox (unreported),18 September 1992 . So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law."
"7.1 Clause 1(a) of the Criminal Law Bill [at p 90 of the report] provides for the purposes of the offences in Part I of the Bill that 'a person acts … "intentionally" with respect to a result when – it is his purpose to cause it; or although it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.' ……….. 7.4 In all but the most unusual cases, courts and juries will only be concerned with the basic rule in clause 1(a)(i) of the Criminal Law Bill: that a person acts intentionally with respect to a result when it is his purpose to cause that result. 7.5 The concept of purpose is ideally suited to express the idea of intention in the criminal law, because that law is concerned with results that the defendant causes by his own actions. These results are intentional, or intentionally caused, on his part, when he has sought to bring them about, by making it the purpose of his acts that they should occur… 7.6 …….[I]n almost all cases when they are dealing with a case of intention, courts will not need to look further than paragraph (i) of clause 1(a). Paragraph (ii) is however aimed at one particular type of case that, it is generally agreed, needs to be treated as a case of 'intention' in law, but which is not covered by paragraph (i) because the actor does not act in order to cause, or with the purpose of causing, the result in question….. 7.7 The point was formulated by Lord Hailsham of St Marylebone in R v Hyam[1975] AC 55 , 74. A person must be treated as intending 'the means as well as the end and the inseparable consequences of the end as well as the means'. If he acts in order to achieve a particular purpose, knowing that that cannot be done without causing another result, he must be held to intend to cause that other result. The other result may be a pre-condition ; as where D, in order to injure P, throws a brick through a window behind which he knows P to be standing; or it may be a necessary concomitant of the first result; as where … D blows up an aeroplane in flight in order to recover on the insurance covering the cargo, knowing that the crew will inevitably be killed. D intends to break the window and he intends the crew to be killed. 7.8 There is, of course, no absolute certainty in human affairs. D's purpose might be achieved without causing the further result; P might fling up the window while the brick is in flight; the crew might make a miraculous escape by parachute. These, however, are only remote possibilities, as D (if he contemplates them at all) must know. The further result will occur, and D knows that it will occur, 'in the ordinary course of events'. This expression was used in Clause 18 of the [Law Commission's 1989 Draft Criminal Code Bill ] to express the near-inevitability, as appreciated by the actor, of the further result."
"Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen."
"It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable."
"What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so."
"The more appropriate analysis is as follows: the doctor by his act intends (on any proper understanding of the term) the death of his patient and by his act causes (on any proper understanding of the term) the death of his patient, but the intention is not culpable and the cause is not blameworthy because the law permits the doctor to do the act in question."
"It is difficult to accommodate the proposed treatment which, notwithstanding the above comments, it is recognised the Court may well consider to be desirable, within the framework of established legal principle. It might be argued that the basic principles of medical law cannot be applied to these facts. Existing case law is based upon the presumption of bodily integrity. John Locke's assertion that "every Man has a Property in his own Person. This no Body has any Right to but himself" ( Two Treatises of Government , 1690) which underpins much of the moral dialogue in this area is difficult to apply in the case of conjoined twins. Both twins' physical autonomy was compromised at birth with the result that they now have fundamentally inconsistent interests and needs. In these circumstances, the Court may wish to explore the possibility of a development of the law to enable a doctor lawfully to undertake surgery to preserve the life and achieve the independence of one twin even though that may result in the death of the other provided that: (i) The actions of the doctor viewed objectively constitute a proportionate and necessary response to the competing interests viewed as a whole; and (ii) Such actions are approved in advance by the Court. How any development of the law in this area might be reconciled with M's best interests and right to life is a question which it is easier to ask than answer."
"That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man's property in the public interest – for example (in the days before we would dial 999 for the fire brigade) the destruction of another man's house to prevent the spread of catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another's property to save his own person or property from imminent danger – for example, when he entered upon his neighbour's land without his consent, in order to prevent the spread of fire onto his own land."
"I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations – in contract (see the cases on agency of necessity), in tort (see In re F (Mental Patient: Sterilisation)[1990] 2 AC 1 ), and in restitution (see the sections on necessity in the standard books on the subject) and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law"
"Of necessity, and here we must distinguish whether the necessity was avoidable or not; if avoidable and he could escape without slaying, he will then be guilty of homicide; if unavoidable, since he kills without premeditated hatred but with sorrow of heart, in order to save himself and his family, since he could not otherwise escape [danger], he is not liable to the penalty for murder."
"….but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant; for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderamine inculpatae tutelae as shall be further shewed, when we come to the chapter of homicide se defendendo. "
"The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these enquiries: (1) What may be done for the safeguard of a man's life….. As touching the first of these, viz. homicide in defence of a man's own life, which is usually called se defendendo ………….. Homicide se defendendo is the killing of another person in the necessary defence of himself against him that assaults him."
"In such a case [viz. a violent assault] he is permitted to kill the assailant, for there the law of nature, and self-defence its primary canon, have made him his own protector."
"If a man by the terror of present death, be compelled to doe a fact against the Law, he is totally Excused, because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory; yet a man would reason thus, if I doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained; Nature therefore compels him to the fact. When a man is destitute of food, or other thing necessary for his life, and cannot preserve himselfe any other way, but by some fact against the law; as if in a great famine he take the food by force, or stealth, which he cannot obtaine for mony nor charity; or in defence of his life, snatch away another mans Sword, he is totally Excused, for the reason next before alledged."
"There are necessarily some occasions, which, upon general principles of criminal jurisprudence, and independently of the motive or state of mind of the party who causes the death control the generality of the abstract rules founded on mere intention, and which tend to justify or excuse, or to extenuate the act of homicide. Of the former class, that is, of those which serve to justify or excuse the act, the most present are those founded on a principle of necessity where the act is essential to the defence of a man's person or property. The rule as to the latter class, ie where the occasion saves to extenuate criminality is also founded on a mixed principle of necessity and policy."
"The treatises generally contain a provision justificatory of the homicide of an unoffending party committed in order to save the life of the accused, or rather because the accused reasonably thought that the homicide was indispensable for preserving his own life. We propose to omit any justification rule for these occasions. Independently of the question which has been much discussed by ancient and modern jurists of the right in foro conscientiae of a person depriving another of life under such circumstances, we conceive that there would be less inconvenience in leaving persons to the mercy of the Crown who have thus acted under circumstances of sudden and extreme peril, than in holding out protection to the general disposition of all persons to overrate the danger to which they are exposed, and to place too low an estimate on the life of another when placed in the balance against prospect of additional safety to themselves. The Indian Law Commissioners … express themselves on this subject in the following terms: 'There are, as we have said, cases in which it would be useless cruelty to punish acts done under fear of death, or even of evils less than death. But it appears to us impossible to precisely define these cases; we have, therefore, left them to the Government, which, in the exercise of its clemency, will doubtless be guided in a great measure by the advice of the Court'."
"Ingenious men may suggest cases which though possible have not come under practical decision in courts of justice…. We are certainly 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 defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case."
"Compulsion by necessity is one of the curiosities of law, and so far as I am aware is a subject on which the law of England is so vague that, if cases raising the question should ever occur the judges would practically be able to lay down any rule which they considered expedient. The old instance of the two drowning men on a plank large enough to support one only, and that of shipwrecked persons in a boat unable to carry them all, are the standing illustrations of this principle. It is enough to say that should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment."
"…[B]ut these cases cannot be defined beforehand, and must be adjudicated upon by a jury afterwards, the jury not being themselves under the pressure of the motives which influenced the alleged offenders. I see no good in trying to make the law more definite than this, and there would I think be danger in attempting to do so. There is no fear that people will be too ready to obey the ordinary law. There is great fear that they would be too ready to avail themselves of exceptions which they might suppose to apply to their circumstances"
"Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called 'necessity'. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it….." "
"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 upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body."
"Might this defence apply where a parent has killed his grossly malformed infant? Doubtless not. It may of course be argued that the value of such an infant's life, even to himself, is minimal or negative, and that if parents are obliged to rear him they may be disabled from having another and normal child. But it is not a case for applying the doctrine of necessity as usually understood. The child when born, unlike the fetus, is regarded as having absolute rights. Besides, there is no emergency. The usual view is that necessity is no defence to a charge of murder. This, if accepted, is a non-utilitarian doctrine; but in the case of a serious emergency is it wholly acceptable? If you are roped to a climber who has fallen, and neither of you can rectify the situation, it may not be very glorious on your part to cut the rope, but is it wrong? Is it not socially desirable that one life, at least, should be saved? Again, if you are flying an aircraft and the engine dies on you, it would not be wrong, but would be praiseworthy, to choose to come down in a street (where you can see you will kill or injure a few pedestrians), rather than in a crowded sports stadium. But in the case of cutting the rope you are only freeing yourself from someone who is, however involuntarily, dragging you to your death. And in the case of the aircraft you do not want to kill anyone; you simply minimise the slaughter that you are bound to do one way or the other. The question is whether you could deliberately kill someone for calculating reasons. We do regard the right to life as almost a supreme value, and it is very unlikely that anyone would be held to be justified in killing for any purpose except the saving of other life, or perhaps the saving of great pain or distress. Our revulsion against a deliberate killing is so strong that we are loth to consider utilitarian reasons for it. But a compelling case of justification of this kind is the action of a ship's captain in a wreck. He can determine who are to enter the first lifeboat; he can forbid overcrowding; and it makes no difference that those who are not allowed to enter the lifeboat will inevitably perish with the ship. The captain, in choosing who are to live, is not guilty of killing those who remain. He would not be guilty even though he kept some of the passengers back from the boat at revolver-point, and he would not be guilty even though he had to fire the revolver."
"By contrast with the defences of duress just discussed, there appear to be some cases, more properly called cases of 'necessity', where the actor does not rely on any allegation that circumstances placed an irresistible pressure on him. Rather, he claims that his conduct, although falling within the definition of an offence, was not harmful because it was, in the circumstances, justified. Such claims, unlike those recognised by the duress defences, do seem to require a comparison between the harm that otherwise unlawful conduct has caused and the harm that that conduct has avoided; because if the latter harm was not regarded as the greater the law could not even consider accepting that the conduct was justified. Nor, fairly clearly, does the defence depend on any claim that the actor's will was 'overborne': on the contrary, the decision to do what, but for the exceptional circumstances, would be a criminal act may be the result of careful judgment, as in the case of the kind of professional decision referred to in the next paragraph."
"A perhaps more straightforward example is that given by Lord Goff in his judgment in the same case: 'a man who seizes another and forcibly drags him from the path of an incoming vehicle, thereby saving him from injury or even death, commits no wrong'. In such cases there is no question of the defence depending on the actor's resistance being overcome, in the sense discussed in paragraph 29.11 above; rather, the courts decide that in all the circumstances the actor's, freely adopted, conduct was justified."
"… reportedly relied primarily on two analogies. In the first, two men jump from a burning aeroplane. The parachute of the second man does not open, and as he falls past the first man, he grabs his legs. If the parachute cannot support them both, is the first man morally justified in kicking the second man away to save himself? Yes, said the rabbis, since the man whose parachute didn't open was 'designated for death'. The second analogy involves a caravan surrounded by bandits. The bandits demand a particular member of the caravan be turned over for execution; the rest will go free. Assuming that the named individual has been 'designated for death', the rabbis concluded it was acceptable to surrender him to save everyone else. Accordingly, they concluded that if a twin A was 'designated for death' and could not survive in any event, but twin B could, surgery that would kill twin A to help improve the chance of twin B was acceptable"
"No English court has had to consider this situation, and it is clear that only the strongest prohibition on the taking of an innocent life would prevent a finding of justification here: in an urgent situation involving a decision between n lives and n + 1 lives, is there not a strong social interest in preserving the greater number of lives? Any residual principle of this kind must be carefully circumscribed; it involves the sanctity of life, and therefore the highest value with which the criminal law is concerned. Although there is a provision in the Model Penal Code allowing for a defence of 'lesser evil', it fails to restrict the application of the defence to cases of imminent threat, opening up the danger of citizens trying to justify all manner of conduct by reference to overall good effects. The moral issues are acute: 'not just anything is permissible on the ground that it would yield a net saving of lives'. Closely connected with this is the moral problem of 'choosing one's victim', a problem which arises when, for example, a lifeboat is in danger of sinking, necessitating the throwing overboard of some passengers, or when two people have to kill and eat another if any of the three is to survive. To countenance a legal justification in such cases would be to regard the victim's rights as morally and politically less worthy than the rights of those protected by the action taken, which represents a clear violation of the principle of individual autonomy. Yet it is surely necessary to make some sacrifice, since the autonomy of everyone simply cannot be protected. A dire choice has to be made, and it must be made on a principle of welfare or community that requires the minimisation of overall harm. A fair procedure for resolving the problem – perhaps the drawing of lots – must be found. But here, as with self-defence and the 'uplifted knife' cases, one should not obscure the clearer cases where there is no need to choose a victim: in the case of the young man on the rope-ladder, blocking the escape of several others, there was no doubt about the person who must be subjected to force, probably with fatal consequences."
"In such a case where a doctor anticipates, basing his opinion upon the experience of the profession, that the child cannot be delivered without the death of the mother, it is obvious that the sooner the operation is performed the better. The law does not require the doctor to wait until the unfortunate woman is in peril of immediate death. In such a case he is not only entitled, but it is his duty to perform the operation with a view to saving her life"
"The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called 'duress of circumstances'. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established."
"The strength of the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised (see, for example, Stephen's Digest of Criminal Law ), but it has, in English law, not given rise to a recognised general defence of necessity, and in relation to the charge of murder, the defence has been specifically held not to exist (see Dudley and Stephens(1884) 14 QBD 273 ). Even in relation to other offences, there are powerful arguments against recognising the general defence. As Dickson J said in the Supreme Court of Canada in Perka v R (1985) 13 DLR (4th) 1, at p 14: ' "… no system of positive law can recognise any principle which would entitle a person to violate the law because on his view the law was conflicted with some higher social value"
"….[W]here necessity is involved as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused's act constitutes the discharge of a duty recognised by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused's choice of one over the other."
"The assessment cannot entail a mere utilitarian calculation of, for example, lives saved and deaths avoided in the aggregate, but must somehow attempt to come to grips with the nature of the rights and duties being assessed. This would seem to be consistent with Lord Coleridge's conclusion that necessity can provide no justification for the taking of a life, such an act representing the most extreme form of rights violation. As discussed above, if any defence for such a homicidal act is to succeed, it would have to be framed as an excuse grounded on self-preservation. It could not possibly be declared by the court to be rightful."
"the child's welfare shall be the court's paramount consideration."
"A profound respect for the sanctity of human life is embedded in our law and our moral philosophy, as it is in that of most civilised societies in the East and in the West. That is why murder (next only to treason) has always been treated here as the most grave and heinous of crimes."
"What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so."
"Secondly, the court's high respect for the sanctity of human life imposes a strong presumption in favour of taking all steps capable of preserving it, save in exceptional circumstances. The problem is to define those circumstances. Thirdly, and as a corollary to the second principle, it cannot be too strongly emphasised that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life."
"I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can."
"I think that is an horrendous scenario, to think of being dragged around and being able to do nothing about it. I think with the increasing activity of [Jodie], [Mary's] situation becomes worse."
"The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called "mercy killing", where active steps are taken in a medical context to terminate the life of a suffering patient, and a situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life. The acute unease which I feel about adopting this way through the legal and ethical maze is I believe due in an important part to the sensation that however much the terminologies may differ the ethical status of the two courses of action is for all relevant purposes indistinguishable. By dismissing this appeal I fear that your Lordships' House may only emphasise the distortions of a legal structure which is already both morally and intellectually misshapen."
"I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations of the law are already open to question. The opportunity for anomaly and excessively fine distinctions, often depending more on the way in which the problem happens to be stated than on any real distinguishing features, has been exposed by many commentators, including in England the authors above-mentioned, together with Smith & Hogan on Criminal Law , 6 th ed (1988), p.51, H Beynon at [1982] Crim LR 17 and M J Gunn and J C Smith at [1985] Crim LR 705. All this being granted we are still forced to take the law as we find it and try to make it work. " (The academic writers to whom Lord Mustill had already referred were Professor Skegg, Professor Glanville Williams and Professor Kennedy. This court has been referred to much of this material and has also considered more recent work, including some valuable articles by Professor Ashworth, Professor Finnis and Dr Keown.) Lord Browne-Wilkinson was equally candid. He described his conclusion as reached on narrow, legalistic grounds. He said at the end of his speech (at p.885) " ... the conclusion I have reached will appear to some to be almost irrational. How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder."
"I was at first attracted by the thought prompted by one of the doctors, that Jodie was to be regarded as a life support machine and that the operation proposed was equivalent to switching off a mechanical aid. Viewed in that way previous authority would categorise the proposed operation as one of omission rather than as a positive act. However on reflection I am not persuaded that that is a proper view of what is proposed in the circumstances of this particular case. I have preferred to base my decision upon the view that what is proposed and what will cause Mary's death will be the interruption or withdrawal of the supply of blood which she receives from Jodie. Here the analogy with the situation in which the court authorises the withholding of food and hydration. That, the cases make clear, is not a positive act and is lawful."
"Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen."
"The concept of necessity has its role to play in all branches of our law of obligations - in contract (see the cases on agency of necessity), in tort (see In re F (Mental Patient: Sterilisation)[1990] 2 AC 1 ), and in restitution (see the sections on necessity in the standard books on the subject) and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law."
"1. Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason ( R v Pommell[1995] 2 Cr App R 607 at 615C). Accordingly, if raised by appropriate evidence, it is available in relation to hijacking aircraft; although, in such cases, the terror induced in innocent passengers will generally raise issues of proportionality for determination, initially as a matter of law by the judge and, in appropriate cases, by the jury. The courts have developed the defence on a case-by-case basis, notably during the last 30 years. Its scope remains imprecise ( Howe , 453G-454C; Hurst[1995] 1 Cr App R 82 at 93D). Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress (see Southwark LBC v Williams(1971) 1 Ch 734 , per Lord Justice Edmund-Davies at 746A; Loughnan , by the majority at 448 and the dissentient at 460; and Cole at page 10)."
"Who is to be the judge of this sort of necessity?"
"1. Everyone's right to life shall be protected by law. No one shall be deprived of life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article where it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"The bona fide exercise by a doctor of his clinical judgment must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse."
"For present purposes I do not think it greatly matters whether one simply says that that is not an unlawful act, or that the doctor lacks criminal intent, or that he breaches no duty or that his act did not cause death."