THE DEFENSE OF NECESSITY IN THE CASE OF DUDLEY!&STEPHEN

Regina v Dudley and StephensPavlína Hojecká1. IntroductionRegina v. Dudley and Stephens, the famous story ofa shipwrecked boat, two starving castaways and their act of cannibalism is one of the most important criminal law cases in the common law world. It set the tone on the troubled issue of whether the defence of "necessity" should be available in circumstances where life was taken in order to preserve another's life. Holding that no such defence is available, judges placed strict limits on the doctrine of necessity and influenced the development of defences to crimes in the common law for another hundred years. In fact, thedecision still influences the law to the present day, as we will see while discovering the latest developments in this area of law.The significance of Regina v. Dudley and Stephens lies in the fact that the English courts, for the first time, decisively and absolutely laid down the common law concerning this issue and upheld the principle that human life is to be protected at all costs, that life shall not be taken or sacrificed even to preserve one's own life and that the defence of necessity is no excuse.This case is also a great human rights case. Here, an important principle was at stake: when, and under what circumstances, might one take the life of another in the eyes of the law? Resolving this problem, the court showed how strong the commonlaw viewed the value of human life. The right to life was upheld as an undeniable right, no matter what the circumstances of the situation are. The decision reached in Regina v Dudley and Stephens is also a very controversial one. In this article, we will discover what crucial questions the jury and thecourt were asked to resolve and the attitude adopted. Further, we will also explore the criticismsof the solutions found in the verdict as well as the later development of this legal issue.2. Facts of the CaseOn 5 May 1884, the English yacht Mignonette started its voyage to Sydney, Australia from the village of Tollesbury in Essex. There was a crew of four on board: Tom Dudley, the captain; Edwin Stephens, the mate; Edmund Brooks, a crewman; and Richard Parker, the ship's boy. The voyage was uneventful until 5 July when, having deviated from the main trade route in search of fair weather, 1,600miles off the Cape of Good Hope, the yacht was hit by a massive wave and sank within minutes, forcing the crew to put to sea in their lifeboat, a 13-foot open dinghy. For the first ten days, the crewsurvived on two tins of turnips, whatever rainwater they succeeded in collecting, and the innards and skin of a turtle, hauled aboard on the fourth day. The boat was drifting on the ocean, probably more than a thousand miles away from land.On the eighteenth day, after seven days without food and five without water, Dudley proposed that lots should be drawn so that one of them could be sacrificed to feed the others. Brooks rejected the proposal and Richard Parker, to whom they were understood to refer, was not consulted. Stephens, although sceptical at first, was eventually persuaded that their only hope of survival lay in killing and eating the boy, by then drifting in and out of consciousness and by far the weakest of the four. On the day of the act in question, Dudley and Stephens spoke of their having families, and suggested that it would be better to kill the boy in order to save their lives, and Dudley proposed, that if there was no vessel in sight by the following morning the boy should be killed. The next day, no vessel appearing, Dudley suggested to Stephen andBrooks that the boy had better be killed. Stephens agreed to the act, Brooks dissented. The boy was lying at the bottom of the boat helpless and extremely weakened by famine and drinking seawater, unable to make any resistance. Dudley then approached the boy with the words, “Richard, your hour has come” and, receiving faint reply, “What? Me, sir?” answered “Yes, my boy” and stabbed him in the neck.For the next four days all three men, including Brooks, fed on the boy’s body and drank his blood. On the fourth day after the act was committed, the three men were sighted by a German bark, the Montezuma and picked up by it, in the lowest state of prostration. They were carried to the port of Falmouth, where they faithfully recounted the details of the shipwreck and Richard Parker's deathto the authorities. They were then charged with murder and tried at Exeter.3. Unusual ProcedureOnce the three were arrested, they were brought before the Falmouth borough Magistrates. This wasa preliminary inquiry to determine whether charges against the men should be proceeded with or whether the men should be set free. They were charged with murder and held in custody for a further hearing. On 6 November 1884, the crewmembers were tried at Exeter. Much to the discontent of the intentions of the authorities involved, there was a great crowd at the courtroom, showing its sympathy in favour of the prisoners. Arguably for this reason, the trial judge, Baron Huddleston, decided to take an unusual step and asked the jury to return a special verdict. He explained to them that this was a procedure commonly used to ensure that the case would be reviewed by a higher court. By this step, the jury was basically confined to determining the facts andwas not allowed to render a proper verdict. Moreover, it is believed that the special verdict was drafted by Baron Huddleston himself. Also, curiously, the special verdict contained no finding as to whether it was "necessary" to sacrifice the lifeof Richard Parker.In the special verdict, the jury found that: “if the men had not fed upon the body of the boy, they would probably not have survived to be picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief; that under the circumstances there appearedto the prisoners every probability that, unless they fed, or very soon fed, upon the boy or one of themselves, they would die of starvation; that there was no appreciable chance of saving life except by killing someone for the others to eat; that, assumingany necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men.”After returning the special verdict, setting out the facts only, the matter was referred to the Queens Bench Division for its decision.4. The AppealThe case was argued and decided on 4 and 9 December 1884, in the Divisional Court of the Queen’s Bench Division, before an expanded panel of judges consisting of Lord Coleridge, Chief Justice; Grove and Denman Judges; Pollock and Huddleston (the trial judge), Barons. The prisoners’ counsel, Mr. Collins, argued that English law did recognise a defence of necessity, that applied to the facts, justified or excused the killing of Parker. It was with this contention that the Court was mainly concerned. He referred to a case mentionedin the medical work of Nicolas Tulpius, a Dutch writer, in which several seamen were stranded, cast lots to see who would be sacrificed, and subsequently were "treated with kindness by the Dutch and sent home to St. Christopher." The court, however, decided not to argue at length with counsel’s arguments. After the cousel’s speech, Lord Coleridge simply commented, "We need not trouble you, Mr. Attorney-General to reply, as we are all of the opinion that the prisoners must be convicted." The Attorney General then suggested that it was proper for the court to pronounce sentence.The judgment of the court was handed down by Lord Coleridge, Chief Justice. After stating the facts, he recited the special verdict, adding his opinion that the prisoners “might possibly have been picked up the next day by a passing ship: or they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act.” He also noted that “it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, them who killed him.” Subsequently, Lord Coleridgeproceeded to discuss the merits of the case: "Thereremains to be considered the real question in the case, whether killing, under the circumstances set forth in the verdict, be or not be murder. The contention that it could be anything else was to the minds of us all both new and strange.”To solve the “real question” of the case, the Chief Justice threw himself into a lengthy review of legal texts. His aim was to find out if there is any such defence of necessity to murder.Firstly, he discussed the various definitions of murder in books of authority, which imply that, “in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or anyone else.” According to Coleridge, these definitions, when examined, do not sustain the contention. Bracton, writing in the time of Henry III, was the first to be considered. Coleridge, stated that it is clear that Bracton is speaking of “necessity in the ordinary sense, the repelling by violence – violencejustified so far as it was necessary for the object – any illegal violence used towards oneself" and that he is thinking of physical danger. The Chief Justice hurried to add however, that Bracton’s view, is not supported by the great authority of Lord Hale. In Hale’s opinion, “the necessity which justifies homicide is that only which has always been, and isnow, considered a justification.” According to him, necessity, which justifies homicide, is of two kinds: 1. That necessity which is of a private nature and 2.That necessity which relates to the public justice and safety. The private justification is where “that necessity which obliged a man to his own defence and safeguard” To Coleridge, it is clear that Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called self-defence.To make it even clearer, he cites the words of Lord Hale himself: “If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an innocent; 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 natureand necessity hath made him his own protector cum debito moderamine inculpate tuteloe.” Furthermore, Hale touched upon the issue of extreme necessity either of hunger or clothing: “I take it that here in England,… if a person, being under necessity for want of victuals or clothes, shall upon that account…steal another man’s goods,it is a felony and crime by the laws of England punishable with death.” If therefore, Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larceny, he would certainly, as Coleridge wanted to demonstrate, be clear in denying necessity to murder.Several other English authorities were reviewed by Lord Coleridge: Sir Michael Foster's Discourse on Homicide, Sir Edward East, Stanndforde and Lord Russell. The conclusion is easy to predict: they all share Lord Hale’s view. Lord Bacon’s broad proposition that a threat to one’s existence justifies the taking of an innocent life was rejected as not being “law at the present day”. But what about precedent cases that would offer the court much needed guidance? "Decided cases there are none", stated Coleridge firmly. The case of seven English sailors referred to by counsel, mentioned in a medical treatise published in Amsterdam, appearedto him as an authority in an English court, as unsatisfactory as possible.” A previous American case, United States v. Holmes, in which sailors were found guilty for throwing passengers overboard to save others, was, according to Lord Coleridge, correctly decided but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot. In fact, the court in Holmes recognised necessity as a defence to murder. Naturally, for the Chief Justice, this case was not an “authority satisfactory to a court in this country”.Neither did Lord Coleridge find any guidance in the words of the Commission for preparing the Criminal Code. They stated: ”We are 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 applyingthe principles of law to the circumstances of the particular case.”The Chief Justice then proceeded to ”apply the principles of law to the circumstances of this particular case” and found that the deliberate killingof Richard Parker was clearly murder, unless the killing can be justified by some well recognised excuse admitted by 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. Noris this to be regretted. Though law and morality are not the same, and though 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. It is not so. Topreserve one’s life is, generally speaking, a duty, butit may be the plainest and the highest duty to sacrifice it….these duties impose on men the moral necessity, not of the preservation, but of the sacrifice, of their lives for others, from which in no country …will men ever shrink…It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life.”According to Lord Coleridge, to admit the defence of necessity in this case would be a very dangerousthing to do and could be the “legal cloak for unbridled passion and atrocious crime” . A number of questions, to which it is very difficult to find an answer would arise: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? Should it be the one who is to profit by it to decide who is to be killed? And finally: Was it more necessary to kill Richard Parker than one of the grown men? The answer for Lord Coleridge was clearly, no.At the end of his judgement, the Chief Justice explains his position. “It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering…We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could notourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion forthe criminal to change or weaken in any manner the legal definition of the crime.”Thus, Tom Dudley and Edwin Stephens were both found guilty of murder and sentenced to death. The sentence was later commuted to six months’ imprisonment, without hard labour.5. Criticisms of the VerdictThe decision in Regina v Dudley and Stephens provoked much criticism, which can be divided intotwo groups: criticism of the legal opinion of the verdict and criticism of the decision being a political tool of Home Office policy. Firstly, let us review the major points of the legal opinion criticisms first. The most important standpoint in the verdict is its rejection of the concept of self-preservation as defence to murder on the ground that such a rule would violate the principle that no person's life is worth more than another's and its proposition of the duty of self sacrifice instead.Sir James Stephen commented on Lord Coleridge'sopinion three years later: “I should have agreed withthe rest of the Court had I been a member of it in R. v. Dudley though not in all the reasoning of the judgment. …I could not go so far as to say, as the judgment delivered by Lord Coleridge says, that anycase can impose on a man "a duty" (if the word means a legal duty) "not to live but to die…Whateverestimate may be formed of self-sacrifice, it seems to me to be a duty of which the law can take no notice, if indeed it is a duty at all, which is not a legal question.”Another interesting comment on Coleridge’s duty ofself-sacrifice comes from Tom Stacy, Professor of Law at the University of Michigan. Lord Coleridge revokes that self-sacrifice as a duty of dying for others is recognised in war and supported by Jesus's "Great Example." However, his view that theduty of sacrificing oneself for others should have required Dudley and Stephens to do nothing appears curious to Stacy. In contrast with the examples of war and Jesus, in which self-sacrifice saves others from destruction or evil, he says, “self-sacrifice in the lifeboat would have had the perverse consequence of causing others to die. Instead of requiring that all starve together, the dutyof self-sacrifice would seem to have required one of the crewmen to voluntarily allow himself to be killed so that the others might survive.” To Stacy, the strange position of Lord Coleridge can only be understood in light of the unstated premise that Dudley and Stephens would have had no responsibility for causing the deaths of others through inaction.Another form of opposition to the verdict comes from utilitarian legal thinkers. According to them, Coleridge obscures the fact that Parker's death may have saved the lives of three men. This idea is based on a theoretical foundation: of utility. Here, an action is justified if it produces more utility in terms of its future consequences than do alternative actions. This standpoint would seem to support the necessity of killing in this case.“Dudley and Stephens" choice was between doing nothing, which they were reasonably certain would cause the death of all four, or shortening the life of a semi-conscious boy who already was very close to death, thereby giving the other three a good chance to live. Surely saving three lives would produce more utility than having all four die.” For Lord Coleridge, however, this view is too short-sighted because it ignores the long-term consequences of a rule permitting necessity killings. Further in this direction, professor Stacy analyses the verdict on the act/omission basis. He points out that Lord Coleridge gave no consideration to any responsibility Dudley and Stephens would have had for the death of all four as consequence of their inaction. Here, one cannot simply show their lack of criminal intent. Although they did not wish for anyone to starve as a result of their inaction, they knew that this would happen. Instead, according to Stacy, Lord Coleridge appealsto the act/omission distinction.The Anglo-American rule is that, absent special circumstances that impose a duty to act, a person has no general legal responsibility for the consequences of an omission. However, to Stacy, Dudley and Stephens had responsibility for Parker'sdeath because his death resulted from Dudley's action. But Lord Coleridge implicitly assumed that those on the lifeboat had no duties toward one another sufficient to impose an obligation to take action. They therefore would have had no legal responsibility for the consequences of their inaction. Stacy concludes that whilst it remains truethat recognition of a necessity defence might lead to some killings that are not necessary, non-recognition of the defence could result in an even greater number of preventable deaths of innocents. The second limb of opposition, emphasises the undue presence of policy making in the court's decision. While studying this case onecannot avoid asking why it was that a trial was held in the case of Dudley and Stephens? Public opinion was strongly in favour of Dudley and Stephens.For centuries, past events before the described incident, represented precedents on what to do in an emergency situation on the high seas. The custom of the sea seemed to permit, or at least ignore, the practice of sacrificing one to save others. No previous case of similar circumstances except the Holmes case had gone to court.So why such a drastic change in 1884 in the case of Mignonette? The 1880s were a time when civilization flowered. It found itself at great difficulty to condone a practice of sacrificing a fellow human being to save others outside the context of war. For the peace and dignity of the kingdom, therefore, it was essential that some clear-cut ruling be made to set a definitive rule in the issues of life and death on the high seas which would be precedential for other similar situations. That is why the Home Secretary, as we now know from various documents, made such an effort to put Dudley and Stephens on trial, having already determined that the death sentences should be commuted to brief terms of imprisonment. It also appears that the judiciary, knowing where the sympathy of the public lay, had already made their mind up on the issue of guilt, and virtually bypassedthe jury.6. Later DevelopmentsThe Dudley and Stephens decision laid down a verystrict rule of criminal law tempered only by judicial discretion to give a light sentence and left a very enduring mark on the understanding of necessity inthe common law world. In 1931, a distinguished American judge, Benjamin Cardozo supported Coleridge’s opinion: “Where two or more are overtaken by a common disaster, there is no right on the part of one to save the lives of some by the killing of another.” Moreover, the decision played a decisive role in the exclusion of murder from the purview of duress per minas - a situation when one’s actions were constrained by direct human threats. In the Irish case of Whelan (1934), the Court of Criminal Appeal cited Murnaghan J, sayingthat “murder is a crime so heinous that [it] should not be committed even for the price of life and in such a case the strongest duress would not be any justification”In Steane (1947), Lord Goddard also speaking obiter, excluded murder from the ambit of duress. Even earlier, American case law followed the samepath (Arp v. State, 1983; State v. Nargashian, 1904.Then, in 1969, gradual erosion of the strict rule began by the dictum in R. v. Kray (Ronald), stating that duress was available to an accessory to murder. Taking Kray as a basis, in D.P.P. for Northern Ireland v. Lynch (1975) the majority of the House of Lords held that duress was available to anaccomplice to murder. The high point in this direction was, however, reached earlier in a South African case of S. v. Goliath (1972). There, duress was accepted as a defence to murder:“It is generally accepted…that for the ordinary person in general his life is more valuable than that of another…. Should the criminal law then stat that compulsion could never be a defence to a charge of murder, it would demand that a person who killedanother under duress…would have to comply with a higher standard than that demanded of the averageperson. I do not think that such an exception to the general rule which applies in criminal law is justified.”This erosion was only a temporary affair. In Abbott v R (1977), duress was rejected as a defence to the principal in murder and the u-turn was completed by an important decision of Howe (1987). Here, the House of Lords had to decide whether to perpetuate the distinction between principals and accomplices. They decided not to do so and, unanimously rejecting the Lynch doctrine, favouredthe rule that renders duress and necessity unavailable as defences in all prosecutions for murder.Speaking for the court, Lord Hailsham returned to the Dudley and Stephens concept of heroic sacrifice: “ In general, I must say that I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest, as did the majority in Lynch and the minority in Abbott that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own. Doubtless in actual practice many will succumb to temptation, as they did in Dudley and Stephens. Butmany will not…I have known in my lifetime of too many acts of heroism by ordinary human beings…” Furthermore, on the basis of Howe, the House of Lords in Gotts (1992), held that duress cannot be a defence to attempted murder either.Notwithstanding all this, it would be premature to conclude that necessity can never be a defence to murder in common law. In the recent case of conjoined twins (Re A [children], 2000) B, in order tosave the life of the stronger, A. The situation here was that there were two connected twins, which each had their own head, brain, heart, and lungs. The parents and the physicians understood that allowing them to remain joined would cause both todie. The alternative was to separate the twins surgically, but if the operation was performed, B would be killed and A would probably live, as indeedhappened. If the operation was not performed, both would die. The court based their decision on necessity, distinguishing Dudley and Stephens, because there was no problem of selection - the weaker condition of B was one of the circumstances of the case. The principle set in this case theerefore appears to be that it is lawful to kill B where, as it is known, B is threatened with imminent death but even the short continuation of his life would kill A as well.To end this review of the latest developments on necessity as a defence to murder, let us mention aninteresting remark by the authors of the Smith & Hogan textbook of criminal law. They think that following the destruction of the World Trade Center in New York “it now appears to be recognized that itwould be lawful to shoot down the plane, killing all the innocent passengers and crew if this were the only way to prevent a much greater impending disaster”, and this on the basis of necessity as a defence.7. Significance of Dudley and StephensTo conclude this analysis of the Dudley and Stephens case, let us contemplate the real significance of its decision. Lord Coleridge’s verdictclearly and decisively sets the rule that no matter how harsh the circumstances of the situation are, there is no defence of necessity to murder in common law. That is, to save one's own life, one cannot willingly take somebody else’s innocent life.Stating that where there is a problem of choice between innocent lives, no individual is entitled to decide who should die, the court reaffirmed that everybody has an equal right to life and shall enjoy the same protection under common law.Even though this doctrine was unanimously confirmed in the recent case of Howe, we should not overestimate its scope. Firstly, neither Lord Coleridge’s dismissal of Holmes nor his rejection ofthe lottery principle form part of the ratio decidendi and are not largely accepted by legal writers. More importantly, the Dudley and Stephens doctrine doesnot seem to apply where there is no need to select a victim, as we saw in the case of conjoined twins. It has also been suggested that the Dudley case would be distinguishable, where the person sacrificed has innocently imperilled the lives of others. Even though the strict protection of the rightto life in the decision of Regina v Dudley and Stephens, later confirmed in Howe, continues to be a part of the common law, it would be premature to conclude that necessity can never be a defence to murder nor that further developments of this issue is improbable.