Necessity as a defence to murder

Published in Criminal Law and Justice Weekly, Vol. 175, 7 May 2011, p 270

Two media stories in 2010 of great human interest but with tragically different outcomes were those of the trapped miners in Chile and in New Zealand.  No insensitivity to the familes of the New Zealand mining disaster victims is intended hereby, but the possibility of men trapped in such a manner raises one of the classic problems of criminal law and jurisprudence, namely how far the rules of civilised society can apply in wholly exceptional circumstances. 

Suppose a group of people were trapped and could not be reached in time to prevent starvation without them resorting to cannibalism. That was the scenario envisaged by Lon Fuller in his classic essay “The Case of the Speluncean Explorers” (Harvard Law Review, Vol. 62, No. 4, p 616). Fuller's inspiration was, of course, one of the most infamous cases in English law, R v Dudley and Stephens [1881-85] All ER Rep 61, the case of the shipwrecked sailors killing and eating the luckless cabin boy.

In a recent review of the case (“Death on the High Seas” in Cases that Changed Our Lives, LexisNexis 2010), David Perry QC laments the modest standard of the legal reasoning in the case, which makes it surprising that it still remains authority for the principle that necessity is no defence to murder.  It is therefore worth questioning whether the principle is justifiable.

Mr Perry QC recounts the following hypothetical problem, like the case itself a ubiquitous feature of law and moral philosophy tutorials.  Suppose you are in charge of a set of railway points.  A train is coming down the line which is going to hit five people.  There is no time to stop the train or warn the people. The only option is to switch the points and send the train onto another line, where there is only one person.  Should you intervene and cause the death of the one in order to save the five?  Suppose the one is a woman and the five are all men. Does one invoke the “Birkenhead rule” and refuse to intervene?  What if the one is a child and the five all adults?

Or suppose you are a surgeon with five patients, each of whom requires a different organ transplant. No organs will be available in time.  But there is another patient who requires minor surgery of a different sort.  Do you take each of the necessary organs out of the one patient and thereby save the five?

Straw polls I have conducted always favour flicking the switch of the railway points, but never intervening as a surgeon.  And yet it is hard to see a moral distinction.

Both are distinct from the trapped miner/shipwrecked sailor dilemma, however, in that the trapped people all face death, rather than being in control of the lives of others.  How do they decide who lives?  Perhaps those with the lowest chance of survival should be sacrificed, but it would be perilous for the law to place a greater value on one life than another.  About the fairest solution would seem be to draw lots. 

It would be rare indeed for facts to be as cut and dried as in a tutorial (how could one ever prove the draw was conducted fairly?), although the law regularly has to deal with cases with no independent evidence, and the difficulty applies equally whether the defence of necessity is available or not. 

Should, therefore, the law regarding necessity be abolished, thus enabling one innocent person to kill another innocent person, if the alternative is both of them dying?  

With some diffidence, I suggest that it should not.  The present law might be imperfect, but there are still four safeguards against injustice.  The first is the Attorney-General’s discretion not to bring prosecutions even where there is strong prima facie evidence of an offence having been committed.  That is a fundamental principle of the criminal law.

The second is the admittedly rough sort of protection in the form of the jury system.  Someone attracting overwhelming public sympathy might expect that to be reflected in the jury’s decision. 

The third is what was actually employed in Dudley and Stephens, namely the flexibility in sentencing – though that is greatly reduced when the charge is one of murder. 

The fourth is the very rarely used Royal Prerogative of Mercy. 

It is true that in the case of a person considered morally innocent all but the first method might leave a lingering sense of injustice, but on the other hand for obvious reasons extending the categories of acceptable murder – which is what a defence of necessity amounts to – has to be a step taken with the utmost reluctance.  Ultimately, the injustice of a wrongful conviction can be at least partially redeemed, but the injustice of wrongfully permitting murder cannot.