Some hypothetical situations:
Imagine that you could travel back in time and shoot Adolf Hitler. Would you do it? Of course there is one problem, apart from the Grandfather Paradox, with doing that: if you shot him, thereby preventing WW2 and the Holocaust from happening, how can you then justify the shooting to the people of your own time period?
Let me ask you another that is more realistic. You and some other people are the sole survivors of a shipwreck, in a small boat on the ocean. It is likely that you will all face a cruel death by starvation and thirst before you are discovered. If one of you died, would you resort to cannibalism if it meant survival? The survivors of the Uruguayan flight that crashed in the Andes in 1972 did by eating their comrades who had died in the crash and in a subsequent avalanche, the extreme cold having preserved the bodies. Ultimately 16 people were rescued who would not be alive but for cannibalism.
In your lifeboat, faced with death by starvation and thirst, is it justified to kill and eat one of the persons on board so as to save the rest? Is there a defence of necessity to a charge of murder? Is the killing of an innocent person justified to save the many? This came up in Bytes a short while ago in relation to the Spock Principle, that the needs of the many outweigh the needs of the few.
That is the subject of what follows, a tale that is factual, grisly, morbidly fascinating and in some respects freaky.
It is a case that all criminal lawyers and law students know quite well.
The post is lengthy but worth the read.
In the 1884 case of R v Dudley and Stephens  14 QBD 273 DC, the facts were as follows:
In 1883 Australian lawyer John Want purchased a yacht, the Mignonette, in England for use as a leisure vessel. The yacht needed to be taken to Australia and the only way that this could be done was by sailing it there, at that time quite a hazardous journey, 24,000 kilometers in a small boat. Want had difficulty recruiting a crew but eventually succeeded. In 1884 she sailed from Southampton with a crew of four: Captain Tom Dudley, Edwin Stephens, Edmund Brooks and the 17 year old cabin boy Richard Parker.
Sketch of The Mignonette, by Tom Dudley
The yacht sank off the Cape of Good Hope and all four crew members managed to get aboard a small life boat. They did not manage to take any food or water except for two cans of turnips. They survived on the turnips and what they managed to catch but by the tenth day they were drinking their own urine, were ill and Parker was immobile, possibly unconscious, from hunger and from drinking seawater.
On the eighteenth day, when they had been seven days without food and five without water, Captain Dudley raised that lots should be cast as to who should be put to death to save the rest. This was discussed but no decision was reached. Brooks was opposed. That night Dudley and Stephens discussed it further, reaching the conclusion that it would be preferable for the cabin boy to die to save them, each of them having wives and families. Dudley proposed that if another vessel was not encountered by the next day, that Parker be killed and eaten. The next day Dudley said a prayer and killed Parker by cutting his throat with a penknife, with Stephens standing by to assist if needed.
All three consumed Parker’s flesh, Dudley and Brooks eating the most and Stephens eating only a little.
Four days later they were picked up a by a German freighter.
Once back in England, Dudley and Stephens, open and candid about what had happened, were charged with murder.
Photograph of the Mignonette’s lifeboat, exhibited at Falmouth in 1884
Richard parker’s grave and tombstone in Southampton
Customs of the Sea:
These are customs said to be practiced by officers and crews of ships in the open seas. The customs do not have the force of law.
The most well known of these customs at that time was that of shipwrecked survivors drawing lots to determine who is to be killed and eaten for the others to survive.
It was also commonly accepted in naval communities that cannibalism was justified in order for castaways to survive and that in a situation where lives were to be sacrificed, the cabin boy should be the one chosen. This was on the basis that they typically had no families or dependants.
Dudley was convinced that this was actually part of the law and that he would not be charged with murder. Even the relatives of Richard Parker testified that the defendants were probably justified in their actions. Parker’s brother Daniel, himself a seaman, shook hands with the defendants in court before the trial commenced.
The defence of Dudley and Stephens was paid for by a fund of public donations.
The law in 1884:
In 1884 there was no defence of what, in Australia, is generally referred to as a Proudman v Dayman defence (the name of the 1941 case from which the defence developed), in shorthand form: an honest and reasonable belief. An accused who, at the time of the alleged offence possessed an honest and reasonable belief in a state of facts which, if true, would have rendered that person’s acts innocent, is entitled to an acquittal.
Accordingly there was no defence that Dudly and Stephens honestly believed on reasonable grounds that they had committed no illegality in acting as they did.
Under the doctrine of common purpose, the parties to a common purpose or joint enterprise are equally liable. Thus Stephens, who was part of the plan to kill Parker and stood by ready to assist if needed, could not escape guilt by relying on Dudley having been the person who carried out the fatal act.
The defence of insanity was also not available, the fact of Dudley having said a prayer before killing Parker indicating that he knew the nature and quality of his proposed act.
The issue in the case would be one of necessity.
At the time of this case the doctrine of necessity was still largely unexplored. Much of the prevailing authority at the time spoke of necessity in terms of what is now called self-defence, i.e. taking another’s life to safeguard one’s own. In this case, however, there had been no self defence but rather the killing of an innocent person so as to increase the chances of survival of the killer and others.
The case commenced in Exeter on 2 November 1884 before Judge Baron Huddleston, pictured below.
Huddleston had determined to obtain a guilty verdict and settle the law on the issue of necessity once and for all. To that end he proposed to proceed by way of a special verdict whereby the jury would state only the facts of the case without any determination of guilt or innocence. This would be left to the judge, who would decide whether the facts as found by the jury amounted to guilt.
Curiously, although special verdicts had once been common, there had been none since 1785.
To give the determination further authority, Hudddleston planned to have an expanded bench of several judges hear counsels’ arguments and determine guilt.
After presentation of evidence, the jury found the following established:
· The men would have died but for eating Parker.
· Parker, being in a much weaker condition, would probably have died first.
· At the time of the killing, there was no reasonable prospect for being saved unless they fed upon Parker or themselves.
· There was no greater necessity for killing Parker 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.
Presided over by Lord Coleridge, the expanded panel of judges (which included Baron Huddleston) heard Arthur Collins QC plead a defence of necessity on behalf of the defendants.
With a lack of precedent to rely on, Collins referred to a US case, United States v Holmes (1842), and cited various theoretical and ethical arguments.
At the conclusion of Collins’ arguments, Lord Coleridge said to Arthur Charles QC who was leading the prosecution "We need not trouble you, Mr. Attorney-General to reply, as we are all of the opinion that the prisoners must be convicted."
According to Lord Coleridge “. . . 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.”
The panel of judges found that there was no common law defence of necessity to a charge of murder, either on the basis of legal precedent or the basis of ethics and morality.
Accepting a defence of necessity would, in the opinion of Lord Coleridge, establish a dangerous precedent, that it would be the “legal cloak for unbridled passion and atrocious crime.” 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 no.
He nonetheless recognised the desperate position the men had been in and that standards were being established that might be difficult in practise:
“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 not ourselves 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 for the criminal to change or weaken in any manner the legal definition of the crime.”
Dudley and Stephens were sentenced to the statutory death penalty with a recommendation for mercy.
The court noted that its role was to apply the required mandatory death penalty for murder and that the prerogative of mercy was the responsibility of the Crown.
Attorney-General Sir Henry James felt that a life sentence would be against public opinion, that the court had withheld a finding of manslaughter from the jury but that had it been available that would have been the jury's verdict and "no judge would have inflicted more than three months' imprisonment.
Queen Victoria, on the advice of the Home Secretary William Harcourt, commuted the sentences to six months’ imprisonment, a sentence which Dudley felt to the end was unjust.
To this day the case remains a precedent and authority for the principle that necessity is not a defence to a charge of murder.
The principle came before the court again in 2005 in respect of the proposed separation of conjoined twins.
The following is from Wikipedia:
In Re A (Children( (onjoined Twins: Surgical Separation) (2000) 4 AER 961 Jodie and Mary were ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it was lawful to perform surgery to separate them when the separation would kill Mary. If the operation did not take place there was evidence that both would die within six months. The court proceeded on the basis that the potential charge would be murder in that, although the girls were physically joined, they were separate "lives in being".
The court decided that the operation would be lawful.
Ward LJ. concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy of "sanctity of life" because of the "quasi self-defence".
Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests, because it denied her "inherent right to life."
Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation.
Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished Dudleu & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley.
The above decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children, but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.
The freaky part:
If the story needed to get any weirder or more bizarre, consider the following.
In 1838 horror writer Edgar Allan Poe had written a novel The Narrative of Arthur Gordon Pym of Nantucket. In that novel four men are cast adrift on their capsized ship after a storm and draw lots to decide which of them should be sacrificed as food for the other three. The unfortunate loser of the draw was the cabin boy, Richard Parker.