Siamese Twins | In The Supreme Court Of Judicature Court Of Appeal (Civil Division) On Appeal From Family Division

VI

Conclusion

In my judgment the appeal must be dismissed. Lest it be thought that this decision could become authority for wider propositions, such as that a doctor, once he has determined that a patient cannot survive, can kill the patient, it is important to restate the unique circumstances for which this case is authority. They are that it must be impossible to preserve the life of X. without bringing about the death of Y., that Y. by his or her very continued existence will inevitably bring about the death of X. within a short period of time, and that X. is capable of living an independent life but Y. is incapable under any circumstances (including all forms of medical intervention) of viable independent existence. As I said at the beginning of this judgment, this is a very unique case.

 

Lord Justice Brooke:

9.Introduction

If this appeal had been concerned only with difficult issues of family law, I would have been content if the judgment of Ward LJ, with which I agree, had been issued as a single judgment of the court. Although my heart goes out to the parents of Jodie and Mary in the cruel dilemma in which they find themselves, Parliament has directed us to consider the interests of the children to be paramount. The devout wishes of the children's parents must form an important factor in the balancing equation, but I am completely satisfied, for the reasons given by Ward LJ, that if what is now proposed is a lawful operation, the best interests of Jodie compel us to authorise that operation. It would give her a very good prospect of living a happy, fulfilled life, and provided that the operation is lawful we should not allow Jodie's interests to be overridden by Mary's interests where those interests are in conflict. I also entirely agree, for the reasons he gives, with Ward LJ's analysis of the situation from Mary's standpoint, and with the criticisms he makes of the judge's conclusions in this respect.

We have been told by an independent paediatric surgeon from the Great Ormond Street Hospital that surgery would probably be a low risk procedure for Jodie. He would expect her to have normal bowel control, although he cannot be absolutely certain about this. She voids normally, and he hopes that this will continue. She will need further operations to provide a functioning vagina, but in his experience the great majority of children achieve a functioning vagina after reconstruction. It seems that her gait will be normal, or near normal, although he cannot exclude the possibility of surgery should a curvature of the spine develop. Some of the media comment about this case has focussed on the extreme possibilities of untoward outcomes in relation to all these matters, in contrast to what we have been told is the likely outcome, not only by the Manchester team but also by the independent expert from Great Ormond Street, for whose assistance we are very grateful.

There is one aspect of the facts which I would mention in addition to the very full summary provided by Ward LJ. He has mentioned the pressures on Jodie's heart if the present situation continues for any significant length of time. The consultant paediatrician from Manchester mentioned two other threats which Mary posed to Jodie. The first was that persistent hypoxia in Mary might lead to the release of cytokines which would be capable of crossing over to Jodie's circulation. Such cytokines are known to be damaging to the brain and might lead to white matter damage, which in turn might lead to the development of irreversible cerebral palsy. Persistent hypoxia in Mary might also lead to the generation of thromboplastins which would enter Jodie's circulation and cause an abnormality in coagulation, causing a prolongation in clotting time and a tendency to bleed. In evidence, this witness added that chronic hypoxia over many days and weeks would promote cell destruction in Mary, and there was a possibility that it would have a similar effect on Jodie. The dangers posed to Jodie by Mary's continued attachment to her cannot simply be limited to the serious dangers posed to Jodie's heart.

Although I am in full agreement with Ward LJ on the family law issues in this appeal, I have been constrained to prepare a judgment of my own because of the exceptionally difficult issues of criminal law which this appeal has raised. In this judgment I am happy to adopt the description of the facts of this case which Ward LJ has set out. In order to understand more fully the issues we have to decide, I have also found it valuable to consider in some detail the effect of the medical and other literature which has been put before the court.

10.The medical literature

The birth of conjoined twins is a comparatively rare event. In 1975 one expert suggested that they constituted 1 in 50,000 live births. There has been a more recent estimate of 1 in 100,000. In 1986 another expert estimated that on the continent of Africa 1 in 14,000 births were of conjoined twins. 40-60% of these twins were stillborn, and a further 35% survived for only one day after birth.

Conjoined twins are always the product of a single fertilised egg, and they always have the same chromosomal composition and sex. It is believed that they result from an incomplete division of the inner cell mass about 15-16 days after the egg is fertilised, and about seven days after what is called monozygotic twinning is said to occur. The exact reason for the complex fusion which may result from such late cleavage is still unknown, and it takes a wide range of different forms. The incomplete division of the embryo appears to be associated with a process which inhibits the complete differentiation of the various organ systems. Conjoined twins with fused organs therefore usually enjoy incomplete development. This may be manifested for instance, in conjoined hearts or livers, or conjoined gastro-intestinal and genito-urinary tracts.

There are a few centres of medical and surgical excellence in different parts of the world which specialise in the care and, on very rare occasions, the separation of conjoined twins. The Great Ormond Street Children's Hospital in London has now established itself as one such centre. The Children's Hospital of Philadelphia is another, and we have been greatly assisted by being afforded the opportunity to read two papers written by Professor James O'Neill, formerly of the Department of Surgery at that hospital. The first, entitled "Surgical Experience with Thirteen Conjoined Twins", was a paper he presented to a specialist gathering in San Francisco in 1988. The other is his chapter on Conjoined Twins in the second volume of his textbook "Pediatric Surgery" (5th Edition), which was published much more recently. We also obtained much assistance from a 1989 article entitled "Twenty Three Year Follow-up of Separated Ischiopagus Tetrapus Conjoined Twins", by Dr Hoyle and Dr Thomas of the School of Medicine in the University of North Carolina. This article summarises the outcome of the 33 reported attempts at surgical separation of the type of conjoined twins with which we are concerned in this case. While the authors were engaged in preparing this summary, they conducted a survey of more than 600 publications in the medical literature concerned with the topic of conjoined twins.

Doctors give the name "ischiopagus conjoined twins" to twins of this type. The Greek derivation of the first part of this word means "pelvis", and the second part of the word means "fixed". In 1988 Professor O'Neill believed that ischiopagus twins constituted about 6% of the total number of conjoined twins. They are joined, as their name suggests, at the pelvis, and they often possess shared genito-urinary structures, recta and livers. They may possess a ruptured omphalocele - a hernia of abdominal organs through the umbilicus (navel) - and they usually have either three or four lower extremities. They can therefore be categorised as ischiopagus tetrapus (four legs), like the twins in this case, or ischiopagus tripus (three legs). Bipus (two legs) twins also feature in the literature. There may be substantial differences in the way in which the bones and organs of the bodies of ischiopagus conjoined twins develop in the womb.

Ward LJ has described the anatomical structures of these two children, and I need not repeat what he has said. One feature of these structures is that this is not one of those cases in which there would have to be any organ transplantation from Mary to Jodie as a part of any surgical separation. Apart from the organs they share (which would have to be divided) and their divided organs (which would have to be united) they each have a complete set of separate organs, although in Mary's case some of them (and in particular her heart, lungs and brain) are severely underdeveloped.

Because they may develop differently, there can be no single solution to the legal issues that arise from any proposal to separate twins joined at the pelvis, let alone all conjoined twins. About 75% of all conjoined twins are joined at the thorax or the navel. These very often have conjoined hearts, and surgical separation is regarded as likely to be hopeless in the vast majority of such cases. The next main category (pygopagus: 18%) are joined at the rear, at sacrum level, and a tiny minority (craniopagus: 1.5%) are joined at the head. There are also (heteropagus) children born with parasitic attachments that are attached as duplicates to any part of their bodies, or even within their bodies. We are not of course concerned in this case with any of these other types of conjointure, which form 94% of the total.

The general scene has been well described by Sally Sheldon and Stephen Wilkinson, of the law and philosophy departments of Keele University, in their recent article "Conjoined Twins: the Legality and Ethics of Sacrifice" (1997) 2 Med LR 149 at p 150:

"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."

We are concerned with the last of these three situations. The authors of the article are correct to add, and we cannot stress this point too strongly, that each situation will raise its own unique problems.

Although the Roman writer Pliny referred to a pair of conjoined twins nearly 2,000 years ago, and although the Maids of Biddenden, who were born in England in 1100 and survived into adult life, joined laterally from hips to shoulders, gained a reputation which has lasted to the present day, conjoined twins were not mentioned in a significant medical treatise until 1678, and the earliest recorded successful surgical separation was performed in 1689. It is a measure of the extreme rarity of the operation (at any rate until very recent times) that Professor O'Neill has said that only about 100 successful separations (featuring the survival of one or both twins) were reported in medical literature between 1689 and 1988. In the latest edition of his text book on paediatric surgery he raised that figure to 150, and in 1997 another review (conducted by N C Freeman and others) updated Dr Hoyle's figures and concluded that there were now 210 reports of surgical separation operations for conjoined twins reported in world medical literature.

Conjoined twins obtained international notoriety (and a name now universally used) in the nineteenth century when Eng and Chang Bunker, born in Siam in 1811, toured the world with P T Barnum's circus, living fertile and successful lives until their deaths, within three hours of each other, at the age of 63. Notwithstanding the obvious happiness of these two men, conjoined twins were described as "double-headed monsters" in medical literature well into the twentieth century. Very few of them, if born alive, survived for more than a few days, and a tiny handful grew up into adulthood. Separation was hardly ever attempted before about 1955.

As I have said, we are concerned in this case only with the surgical separation of twins joined at the pelvis. Hoyle and Thomas reported 33 such operations in the medical literature up till 1989 and listed them conveniently in a table. The later operations in this series, from about 1979 onwards, on the whole display more or less consistently successful outcomes, although the survivors were inevitably still very young when their article was written. On the other hand, of the 26 children involved in the 13 operations undertaken between 1955 and 1974 only 15 survived, and one of these died when only two years old.

More significantly for the purposes of the present case, in two of these early cases one of the twins is said to have been sacrificed. In one of these cases the sacrificed twin suffered from anencephaly (ie it lacked all or most of the cerebral hemispheres, but was capable of using its lungs). In the other case, the first in the series, the sacrificed twin was said to have been deformed and moribund. In that case the surviving twin was lost to follow-up at the age of ten, but at that time she was said to be doing quite well except for her short stature and abnormal gait due to the absence of a symphysis pubis.

We have also been shown a 1998 article, "Urological problems in conjoined twins", written by a senior registrar at Great Ormond Street Hospital in conjunction with others at that hospital. Between 1985 and 1995 seven sets of conjoined twins were surgically separated at Great Ormond Street. Urological problems were encountered in three of these sets of twins, all of whom were joined at the pelvis. They were also all joined at the navel, and two of them were joined at the breast bone as well. Their separation operations took place at the ages of 8 months, 10 months and three years respectively. One of these children died three days after her operation, probably secondary to cardiac insufficiency, and another died a year after separation from aspiration of a foreign body.

The pre-operative and post-operative conditions of all these children were different, and because they were either bipus or tripus twins, all the survivors now possess an artificial limb. One of them, at 8 years old, was said to have urinary control, with normal renal function. Of the second set, one twin was having problems with his renal function and bladder at the time of his death. The other was having very considerable problems with renal function, had no urinary control, and at the age of 4 was awaiting stone removal and further genital reconstruction. Pre-operatively those twins had possessed medial kidneys fused on the midline and displayed very complex problems in the genital region. Both twins in the pair who both survived (until the age of ten at least) were experiencing continuing difficulties of a urological nature. One of them was still incontinent of urine despite an injection into the neck of his bladder, while the other was fitted with suprapubic catheterization to control his bladder emptying functions. Other centres were said to have reported greater success in achieving urinary continence in such children following their separation.

Another article, "Experience with Uro-Genital Reconstruction of Ischiopagus Conjoined Twins", discussed the comparable experience of the Philadelphia Children's Hospital between 1957 and 1993. Their 20 surgical separations included six pairs of twins joined at the pelvis. Ten of them survived - one of the two deaths resulted from a cause unconnected with the surgery - but many of them experienced continuing urinary problems, or were awaiting further surgical intervention. The authors concluded that with careful observation and judicious intervention it was possible to maintain normal kidney function, provide bladder continence, and make normal sexual activity and fertility achievable goals, so that the individuals concerned might have satisfying well-adjusted lives.

Although more than 200 surgical separations have now been carried out, neither counsel nor the members of the court were able to discover any reported judgment of any court in any jurisdiction that has addressed the issues that are at the centre of the present appeal. It appears that in the United States of America proposals to separate conjoined twins may now be referred to hospitals' ethics committees, and not to a court, no doubt because of features of United States law that are different from English law.

We were shown, however, one article that contained a vivid description of a case in Philadelphia in 1977 in which a three-judge panel of a local Family Court retired for only three minutes before deciding that a surgical separation might go ahead. This was a case similar to ours, where the survival of both twins following separation was out of the question. It therefore raised the same ethical (and legal) question: could one twin be sacrificed so that the other might have a chance to live?

In that case the parents, who were deeply religious Jews, would not consent to the separation without rabbinical support. Many of the nurses at the hospital were Catholic, and they would not allow themselves to become involved in the proposed operation unless a priest assured them that it was morally acceptable to proceed. In the event, both the rabbinical scholars and the archdiocesan authorities gave favourable answers, for reasons to which I will refer later in this judgment. The court authorised the surgery, although sadly the surviving twin died three months later.

It is possible to draw two fairly clear conclusions from the medical literature before the court:

Although surgical separation of conjoined twins is still a very rare event, it is now being performed more frequently, and there is a substantial volume of writing available to assist medical and surgical teams, like the teams at Manchester, who are undertaking the operation for the first time;

The separation of twins joined at the pelvis is complicated by the incidence of shared (or divided) organs in the genito-urinary and gastro-intestinal regions. Such separations, however, are now being undertaken more frequently, with reasonably good results although there is always a need for careful post-operative monitoring and for further surgical intervention, if and when it is required.

11.The law of murder and the sanctity of human life

I turn from this general introduction to the issues of criminal law that have been raised by this appeal. As is apparent from the judgment of Ward LJ, issues of life and death are presented in the starkest terms. The operation to save Jodie would kill Mary. If the operation is not performed, both will probably live for a few more months and they will both then die. The question is: would such an operation be lawful?

To answer this question we must go first to the law of murder and the defences that are available to a charge of murder. An important part of this examination must be devoted to the defences that may be available to surgeons performing life-saving operations in accordance with good surgical practice. And because this operation, if permitted, is likely to take place after 2nd October 2000, when the Human Rights Act 1998 comes into force, we must also consider the effect of relevant provisions of the European Convention on Human Rights.

First, then, the law of murder. Murder is a common law offence. The classic definition of murder is contained in Coke's Institutes (Co Inst Pt III, Ch.7, p 47). It is in these terms:

"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....."

I omit the requirement, recently repealed by statute, that the death had to occur within a year and a day after the causative act or omission. The editors of the 2000 edition of Archbold have suitably modified this definition so that it conforms with the present state of the 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....."

None of the three exceptions are relevant in this case. They relate to the defences of provocation, diminished responsibility and action in pursuance of a suicide pact. These serve, if available, to reduce to manslaughter what would otherwise be an offence of murder.

The words or phrases in the Archbold definition which need to be explored in the present case are the words "unlawfully", "kills", "any reasonable creature" and "with intent to kill". It is first, however, necessary to say a little about the value protected by the law of murder, namely the sanctity of human life.

The right to life is one of the most important values protected by our law. The penalty for murder is a mandatory sentence of life imprisonment. Before 1957 the mandatory penalty for murder was death. When I consider, in due course, the circumstances in which the law is willing to recognise that an act which would otherwise constitute a crime was not unlawful, it will be evident that our common law judges, right up to the present day, have shown very great reluctance to extend those defences when an innocent life has been taken deliberately. As the law now stands, for example, duress is available as a defence to a charge of aircraft hi-jacking but not to a charge of murder or attempted murder. In recent years Parliament has greatly increased the penalties for certain driving offences that result in death. In exercising their sentencing discretion in cases of involuntary manslaughter, where death arises by accident from a quite trivial act of unlawful violence, the judges have always laid stress on the fact that a life has been needlessly lost. Successive Governments, and Parliaments, have set their face against euthanasia. I cannot better what Sir Thomas Bingham MR said about the sanctity of human life in his judgment in Airedale NHS Trust v Bland [1993] AC 789, 808, in the passage quoted by Robert Walker LJ in his judgment.

We received a written submission from the Archbishop of Westminster which began along these lines:

"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."

The first of the five "overarching moral considerations" which governed the Archbishop's submission was in these terms:

"Human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission".

As the Archbishop observed, the same sentiment is expressed (in secular terms) in Article 2 of the European Convention on Human Rights:

"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".

The Archbishop told us that he was articulating principles of morality which the Catholic Church held in common with countless others who value the Judaeo-Christian tradition.

There can, of course, be no doubt that our common law judges were steeped in the Judaeo-Christian tradition and in the moral principles identified by the Archbishop when they were developing our criminal law over the centuries up to the time when Parliament took over the task. There can also be no doubt that it was these principles, shared as they were by the other founder members of the Council of Europe 50 years ago, which underlay the formulation of Article 2 of the European Convention on Human Rights. Although parts of our criminal law, as enacted by Parliament, reflect a shift away from some of the tenets of Judaeo-Christian philosophy (in particular, for example, a shift away from the Catholic Church's teaching on abortion) in favour of the views of the majority of the elected representatives of an increasingly secular (and increasingly multi-cultural) modern state, there is no evidence that this process is at work in that part of our law concerned with the protection of human life between the moment of birth and the moment of death.

The emphasis that English law places on the importance of the protection of human life is also reflected in the caselaw of the European Court of Human Rights in Strasbourg. In McCann v United Kingdom A324 (1995), 21 EHRR 97, the case concerned with the shooting of suspected IRA terrorists in Gibraltar, the court said at para 147:

"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 ["No one shall be subjected to torture or to inhuman or degrading treatment or punishment"], it also enshrines one of the basic values of the democratic societies making up the Council of Europe..."

It is against this background that I turn to the four words or phrases whose meaning has to be explored in this case: "unlawfully", "kills", "any reasonable creature", "with intent to kill". I will consider first the words "any reasonable creature".

12.Is Mary a reasonable creature?

For the reasons given by Ward LJ and Robert Walker LJ, with which I agree, I am satisfied that Mary's life is a human life that falls to be protected by the law of murder. Although she has for all practical purposes a useless brain, a useless heart and useless lungs, she is alive, and it would in my judgment be an act of murder if someone deliberately acted so as to extinguish that life unless a justification or excuse could be shown which English law is willing to recognise.

In recent editions of Archbold, including the 2000 Edition, the editors have suggested that the word "reasonable" in Coke's definition (which they wrongly ascribe to Lord Hale in para 19.1) related to the appearance rather than the mental capacity of the victim and was apt to exclude "monstrous births". Spurred on by this suggestion, and because the present case broke so much novel ground, we explored with counsel some of the thinking of seventeenth century English philosophers in an effort to ascertain what Coke may have meant when he used the expression "any reasonable creature" as part of his definition. We had in mind their absorbing interest in the nature of "strange and deformed births" and "monstrous births" (see Thomas Hobbes, Elements of Law, II.10.8, and John Locke, An Essay Concerning Human Understanding, III.III.17, III.VI.15 and 26 and III.XI.20).

In Attorney-General's Reference (No.3 of 1994) [1998] AC 245 Lord Mustill referred at p 254F to another statement in Coke's Institutes, not mentioned in that passage in Archbold, where after referring to prenatal injuries which lead to the delivery of a dead child, Coke writes (Co Inst Pt III, Ch.7, p 50):

"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 natura, when it is born alive".

In these circumstances I have no hesitation in accepting the submission by Miss Davies QC (whose assistance, as the friend of the court, was of the greatest value), which was in these terms:

"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."

Modern English statute law has mitigated the prospective burden that might otherwise fall on the parents of severely handicapped children and their families if they are willing to avail themselves of its protection at any time up to the time the child (or children) is born. Section 1(1)(d) of the Abortion Act 1967, as substituted by Section 37(1) of the Human Fertilisation and Embryology Act 1990, provides:

"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".

Once a seriously handicapped child is born alive, the position changes, and it is as much entitled to the protection of the criminal law as any other human being. The governing principle is sometimes described as the universality of rights. In the Canadian case of Perka v The Queen 13 DLR (4th) 1 Wilson J said at p 31 that the principle of the universality of rights demands that all individuals whose actions are subjected to legal evaluation must be considered equal in standing.

It follows that unless there is some special exception to which we can have recourse, in the eyes of the law Mary's right to life must be accorded equal status with her sister Jodie's right to life. In this context it is wholly illegitimate to introduce considerations that relate to the quality, or the potential quality of, each sister's life.

13. The meaning of the word "kills"

I turn now to the word "kills" in the definition of murder. In the Tony Bland case (Airedale NHS Trust v Bland [1993] AC 789) the House of Lords was much exercised with the question whether the cessation of medical treatment and care to a patient who had been in a persistent vegetative state for three years constituted an intentional killing of that patient for the purposes of the law of murder. Lord Goff identified what he described as a crucial distinction in these terms at p 865:

"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."

In the Tony Bland case the House of Lords was satisfied that the cessation of life-prolonging treatment or care could not be categorised as a positive act for the purposes of the law of murder, and since on the facts of that case the doctors owed no duty to the patient to prolong his life (since that course, the House of Lords held, would not be in their patient's best interests), they could not be found guilty of a culpable omission to act, either.

It was this distinction between acts and omissions which the judge had in mind when he held that it would be lawful to perform the proposed operation. He explained his thinking in the long passage which Ward LJ has recited fully in his judgment. He believed, in short, that the proposed operation was not unlawful because it did not represented a positive act but merely the withdrawal of Mary's blood supply.

On the hearing of the appeal only Mr Whitfield QC sought to persuade us to uphold the judge's approach. I am satisfied that the judge's approach was wrong. The proposed operation would involve a number of invasions of Mary's body, in the process of identifying which organ belonged to which child, before the positive step was taken of clamping the aorta and bringing about Mary's death. These acts would bear no resemblance to the discontinuance of artificial feeding sanctioned by the House of Lords in the Tony Bland case. They would be positive acts, and they would directly cause Mary's death.

14.The intention to kill

Next, the words "intent to kill". There is a technical difficulty about one aspect of the meaning of "intention" in this context. It seems to me that the best way to describe it is to start with an extract from the Law Commission's 1993 report on Offences Against the Person and General Principles, Law Com. No 218 at pp 8-10:

"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."

 

In paragraph 7.2 of its report the Law Commission touched on some of the problems that existed in 1993 in this corner of the law. These problems were vividly described by Lord Steyn in his speech in the recent case of R v Woollin [1999] 1AC 82 at pp 90E-93F, with which the other members of the House of Lords agreed. Apart from mentioning at p 91A the "state of disarray" into which the House of Lords had plunged the law of murder in the case of R v Hyam [1975] AC 55, it is not necessary to go into any further detail about these problems. Suffice it to say that Lord Steyn restated the law along the lines suggested by the Law Commission six years earlier. The effect of his speech at p 96B-H is that in this rare type of case a judge should direct the jury in accordance with the following principles:

"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."

Now that the House of Lords has set out the law authoritatively in these terms, an English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end, because her death would be the virtually certain consequence of their acts, and they would realise that for all practical purposes her death would invariably follow the clamping of the common aorta.

15. The doctrine of double effect

We received interesting submissions from Mr Owen QC and Mr Whitfield in which they suggested that the doctrine of double effect would relieve the surgeons of criminal responsibility in these circumstances. This doctrine permits a doctor, in the best interests of his or her patient, to administer painkilling drugs in appropriate quantities for the purpose of relieving that patient's pain, even though the doctor knows that an incidental effect of the administration of these drugs will be to hasten the moment of death. In his speech in Airedale NHS Trust v Bland, Lord Goff, while describing the doctor's duty to act in the best interests of his patient, said at p 867C-E:

"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."

In re J [1991] Fam 33 Lord Donaldson MR identified the relevant principles in these terms at p 46C-D:

"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."

 

Mr Whitfield relied on these dicta in support of his argument that what matters in this context is the surgeon's "primary purpose" (a phrase used by Ognall J in summing up to the jury in R v Cox 12 BMLR 38), and that the fact that Mary's accelerated death would be a secondary effect of the surgeon's actions would not justify his conviction for murder. He also referred us to the passage at pp179-180 in an essay by Professor Ashworth, Criminal Liability in a Medical Context: the Treatment of Good Intentions, which is published in Harm and Culpability (edited by AP Simester and ATH Smith, Oxford, 1996). Mr Whitfield summarised Professor Ashworth's argument as follows:

(i) the true meaning of intention is purpose;

(ii) one may purpose ends or means;

(iii) one does not purpose a side-effect;

(iv) therefore a consequence, even if prohibited, is not intended if it is a side effect.

Mr Owen QC, for his part, referred us to a passage in the 2nd Edition of Medical Law, in which Professors Ian Kennedy and Grubb criticise the doctrine of double effect in so far as it is advanced as negating the necessary elements of intention or causation for the crime of murder, saying at p 1207:

"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 not necessary for the purpose of this case to decide authoritatively whether this is the correct analysis, answering as it does the anxieties about the manipulation of the law of causation expressed by Lord Mustill in Airedale NHS Trust v Bland [1993] AC 789 at pp 895D-896B. There are certainly some powerful dicta in support of a proposition that if a surgeon administers proper surgical treatment in the best interests of his or her patient and with the consent (except in an emergency) of the patient or his or her surrogate, there can be no question of a finding that the surgeon has a guilty mind in the eyes of the criminal law: see in particular Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, per Lord Fraser of Tullybelton at pp 174G-175A and Lord Scarman at p 190F-G. The reason why it is not necessary to decide these matters now is that the doctrine of double effect can have no possible application in this case, as the judge rightly observed, because by no stretch of the imagination could it be said that the surgeons would be acting in good faith in Mary's best interests when they prepared an operation which would benefit Jodie but kill Mary.

In this context it is relevant to quote the second and third overarching moral considerations identified by the Archbishop of Westminster in his written submission:-

"(b) A person's bodily integrity should not be involved when the consequences of so doing are of no benefit to that person; this is most particularly the case if the consequences are foreseeably lethal.

(c) Though the duty to preserve life is a serious duty, no such duty exists when the only available means of preserving life involves a grave injustice. In this case, if what is envisaged is the killing of, or a deliberate lethal assault on, one of the twins, Mary, in order to save the other, Jodie, there is a grave injustice involved. The good end would not justify the means. It would set a very dangerous precedent to enshrine in English case law that it was ever lawful to kill, or to commit a deliberate lethal assault on, an innocent person that good may come of it, even to preserve the life of another".

It is of interest to note in this context that when the Catholic nurses at the Children's Hospital in Philadelphia consulted their archdiocesan authorities in a similar case in 1977 (with the sole distinguishing factor that the parents of the "sacrificed" child were willing to consent to the operation once they had received favourable rabbinical advice) the comfort they received was based on the double effect doctrine. It was argued that the tying of the carotid artery was done not to terminate the life of the sacrificed twin but to preserve the life of the other twin by protecting it from the poisons that would built up in the sacrificed twin's blood after its death: see Siamese Twins: Killing One to Save the Other, by George J Annas (Hastings Center Report, April 1987, 27 at p 28) and The Ethics of Caring for Conjoined Twins, by David C Thomasma and others (Hastings Center Report, July-August 1996, 4 at p 9). I do not consider that this method of applying the doctrine of double effect would have any prospect of acceptance in an English court.

It follows from this analysis that the proposed operation would involve the murder of Mary unless some way can be found of determining that what was being proposed would not be unlawful. This, the fourth and final part of the investigation, is far the most difficult. It is worth noting at the outset that Miss Davies supported the contentions of Mr Whitfield and Mr Owen to the effect that what was proposed would not be unlawful. They were opposed by Mr Taylor (for the parents) and Mr Harris QC (instructed by the Official Solicitor on behalf of Mary). At the close of his final submissions on behalf of Mary, however, Mr Harris, acting on the Official Solicitor's express instructions, took us back to the final page of his original written argument to this court, which had ended in these terms:

"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."

This explicit encouragement by the Official Solicitor that we should explore the possibility of developing the law so as to enable such surgery to be undertaken lawfully was not at all unwelcome. We pointed out repeatedly to Mr Taylor and Mr Harris during the course of argument that if their contentions were correct, no separation surgery which would inevitably involve the sacrifice of one conjoined twin could ever lawfully take place, however ardently their parents wished one of their children to survive, and however severely compromised the condition of the other twin. It would also follow, if their arguments based on the effect of Article 2 of the European Convention on Human Rights (bolstered on this occasion by the written arguments of Mr David Anderson QC on behalf of the Pro-Life Alliance) are well-founded, that no separation surgery involving the sacrifice of a conjoined twin could take place in any of the member states of the Council of Europe. Mr Taylor and Mr Harris accepted, realistically, that this was indeed the effect of their submissions.

16. The doctrine of necessity

We received some interesting and powerful submissions about the doctrine of necessity, and the ways in which it might be called in aid to justify the operation proposed by the doctors. Although for many years cases involving pleas of necessity were notable for their absence from our caselaw, the doctrine has recently been given a new lease of life by Lord Goff of Chieveley, first in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and more recently, in a speech with which the other members of the House of Lords agreed, in R v Bournewood Community and Mental Health NHS Trust ex parte L [1999] 1 AC 458.

This doctrine is so obscure, and it has featured so seldom in our caselaw in the criminal courts, that I must describe it in considerable detail, and identify the problems it throws up, before I go on to decide whether it is permissible to apply it to the facts of the present case.

In In re F Lord Goff said at p 74A-C in the context of the law of tort:

"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."

Lord Goff then went on to consider a third group of cases, also founded upon the principle of necessity, which were concerned with actions taken by someone as a matter of necessity to assist another person without his consent. We are not, however, concerned in the present case with this application of the doctrine, because the law confers on the parents of an infant child the authority to consent on her behalf, and because there is also the residual right of consent vested in the court.

In the Bournewood case Lord Goff had recourse to this doctrine again when holding that doctors were entitled to rely on it as the basis for their authority to care for compliant incapacitated patients of adult years and treat them without their consent. At the end of his speech in that case, he mentioned some old cases which authorised (in so far as this was shown to be necessary) the detention of those who were a danger, or potential danger, to themselves or others. He added (at p 490 C-D):

"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".

17. Public and private necessity in the criminal law

In the present case we are concerned with what is said by some of those who appeared before us to be a case of private necessity in the eyes of the criminal law. Bracton, writing in the thirteenth century On the Laws and Customs of England (Selden Society Edition 1968, at Vol 2, 340-341) identified this type of necessity, in the context of the law of homicide, in these terms:

"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."

Five hundred years later the same concept of necessity, which still forms part of our law today, was expressed as follows by Lord Hale in his Pleas of the Crown Vol I, 51:

"....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."

Later in the same volume Hale identifies two kinds of necessity which justify homicide: necessity which is of a private nature, and the necessity which relates to the public justice and safety (with which we are not here concerned). He added (at p 478):

"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."

Blackstone, in Volume IV of his Commentaries on the Laws of England, had recourse to the law of nature as the source of a person's authority to use proportionate force in self-defence, saying at p 30:

"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."

During the seventeenth century there were suggestions that the right of self-preservation extended beyond the right to use appropriate force in self-defence. Thus in his Elements of the Common Laws of England (1630) Lord Bacon wrote:-

"Necessity is of three sorts – necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of conservation of life; if a man steal viands to satisfy his present hunger this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable".

Similar sentiments appear in Thomas Hobbes's Leviathan at p 157:

"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."

Both these extensions of the doctrine of necessity have been authoritatively disapproved as propositions of English law. For the disapproval of the idea that in order to save himself a man is entitled to deprive another of the place of safety he has already secured for himself, see R v Dudley and Stephens (1884) 14 QBD 273 per Lord Coleridge CJ at pp 285-6 ("if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day") and R v Howe [1987] 1 AC 417 per Lord Hailsham of St Marylebone LC at p 431E, to similar effect. For the equally strong disapproval of the idea that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft, see Southwark LBC v Williams [1971] 1 Ch 734 per Lord Denning MR at pp 743H-D and Edmund-Davies LJ at pp 745E-746C. See also on these topics Hale's Pleas of the Crown Volume I, 51 and 54 and Blackstone's Commentaries, Volume IV, pp 30 and 31-32.

18.Nineteenth century attempts at codifying the doctrine of necessity

Nineteenth century Governments appointed commissions from time to time with the laudable purpose of consolidating or codifying our criminal law. Inevitably, these commissions addressed issues related to the existence and scope of the doctrine of necessity. It is not at all surprising that they found them difficult to handle.

For example in 1839 the Commissioners on Criminal Law wrote (see Fourth Report of HM Commissioners on Criminal Law, Parliamentary Papers XIX) at p xxi:

"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."

In 1846, in the Second Report of HM Commissioners for Revising and Consolidating the Criminal Law ((1846) Parliamentary Papers), the Commissioners dealt with self-defence as a potential justification for homicide in Article 16 of their Draft Code, but they decided on policy grounds not to provide a more general defence of necessity. In a footnote to Article 19 they wrote:

"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'."

When the Criminal Code Bill Commissioners took up the challenge in 1879 they were equally baffled by definitional difficulties, although they were readier to leave open the possibility of establishing a lawful justification based on necessity. They said:

"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."

Sir James Stephen was one of these Commissioners, and his initial views on this elusive topic are to be seen in the second volume of his History of the Criminal Law of England, at pp 108-110. He began his discussion of the subject at p 108:

"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."

After referring to the dilemmas created by cases where a boat will sink unless it is relieved of one or more of its passengers, he found some comfort in the judgment of Lord Mansfield in R v Stratton (21 St Tr 1224), from which he derived the proposition that it was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. He went on to say (at pp 109-110):

"...[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".

He ended by saying that these considerations applied also to the case of a choice of evils. One of the two examples he gave in this context was of a ship so situated that the only possible way of avoiding a collision with another ship (which would probably sink one of both of them) involved running down a small boat.

19. The Queen against Dudley and Stephens

This was the legal background against which the case of R v Dudley and Stephens (1884) 14 QBD 273 was set. In AWB Simpson's Cannibalism and the Common Law (1984) the author described how the three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884, a year after Stephen's History of the Criminal Law of England was published. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship's boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). As part of the historical background of the case Mr Simpson describes in Chapter 5 of his book (gruesomely entitled "The Customs of the Sea") a large number of similar instances in the nineteenth century of shipwrecks leading to cannibalism, some of which were described by Samuel Plimsoll in 1875 in a parliamentary debate.

The law report shows how a jury at the Devon and Cornwall Assizes had found the facts of the case in a special verdict. The case was then ordered to be argued in London before a court of five judges. In giving the judgment of the court Lord Coleridge CJ considered earlier writings (including the judgment of a circuit court in Pennsylvania in United States v Holmes 26 Fed Cas 360 (1842)) about necessity being a possible justification for homicide before he concluded that the facts stated in the jury's verdict provided no legal justification for the homicide in the present case. His reasoning can be seen in two passages towards the end of his judgment (at pp 286-288):

"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....."

"It is not needful to point out the awful danger of admitting the principle which has been contended for. 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? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be 'No' –

'So spake the Fiend, and with necessity,

The tyrant's plea, excused his devilish deeds.'

It is not suggested that in this particular case the deeds were 'devilish', but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment: and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it."

Sir James Stephen was not a member of the court, although he authorised Lord Coleridge to say that the language he had used about necessity in his History of the Criminal Law of England was not meant to cover a case like this. Three years later, in his Digest of the Criminal Law (1887), Stephen attempted a description of the doctrine of necessity in these terms at pp 9-11:

"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."

It is not necessary for present purposes to refer to the detail of the long footnote in which he commented, not always favourably, on the judgment of the court in R. v Dudley and Stephens.

That case has sometimes been taken as authority for the proposition that necessity can never under any circumstances provide a legal justification for murder. While it is true that a passage in the speech of Lord Hailsham in R v Howe [1987] 1 AC 417 at p 429C-D might be interpreted to this effect, in my judgment neither that passage nor a similar passage in Lord Mackay of Clashfern's speech at p 453 C-D displays any evidence that they had in mind a situation in which a court was invited to sanction a defence (or justification) of necessity on facts comparable to those with which we are confronted in the present case. I accept Miss Davies's submission that R. v Dudley and Stephens, endorsed though it was by the House of Lords in R. v Howe, is not conclusive of the matter.

20. Necessity: the recent studies by the Law Commission

We have also been shown how the Law Commission tackled this troublesome doctrine in the criminal law between 1974 and 1993. In 1974 a very experienced Working Party was brave enough to recommend codified proposals for a general defence of necessity (Law Commission Working Paper No 55 pp 38-9). Three years later the Commission itself retreated so far from this proposition that it recommended that there should be no general defence of necessity in any new Code, and that if any such general defence existed at common law it should be abolished (Law Com No 83 (1977), p 54). It felt that it would be much better if Parliament continued to create special defences of necessity, when appropriate. Because euthanasia was so controversial, and because the Criminal Law Revision Committee was engaged in work on offences against the person, the Commission thought it better to leave to that committee any questions relating to the provision of a defence in that area of the law.

This retreat, influenced by the responses it had received on consultation, particularly from practitioners (see pp 24-25), evoked a storm of protest from academic commentators (see, for instance, the articles entitled "Necessity" by Glanville Williams [1978] Crim LR 12 and "Proposals and Counter Proposals on the Defence of Necessity" by P.H.J Huxley [1978] Crim LR 141, and the powerful criticism (to the effect that the proposals represented "the apotheosis of absurdity") by Sir Rupert Cross in a Canadian university law journal cited by Professor Glanville Williams in a footnote on page 202 of the Second Edition of his Textbook on Criminal Law (1983).

Professor Williams returned to the topic of necessity in Chapter 26 of that book. He observed at p 602 that the main difficulty felt by the Law Commission appeared to have been in respect of certain "human rights", whereas the doctrine of necessity was an expression of the philosophy of utilitarianism. He referred, however, to a suggestion by an American writer, Paul Robinson, to the effect that the recognition of important values did not entirely exclude a defence of necessity. In the determination of cases where those values did not appear, their existence could not affect the outcome, and even where they did appear, they could be given special weight in estimating the balance of interests.

In his powerful Section 26.3 ("Necessity as a reason for killing") Professor Williams addressed the issues with which we are confronted in this case. He began his treatment of the subject by saying that many people believed in the sanctity of life, and consequently believed that killing was absolutely wrong. It was for this reason, he said, that the defence of necessity, if allowed at all, was given very narrow scope in this area. He distinguished private defence from necessity (although the two overlapped) on the grounds that (unlike necessity) private defence involved no balancing of values, while on the other hand private defence operated only against aggressors (who, with rare exceptions, were wrongdoers) whereas the persons against whom action was taken by necessity might not be aggressors or wrongdoers. In this context, he mentioned R v Bourne [1939] 1 KB 687 (where Macnaghten J had suggested in his summing up that there might be a duty in certain circumstances to abort an unborn child to save the life of the mother), as an example of the defence of necessity, even though it was a case not of homicide but of feticide.

Professor Williams came to the heart of the matter at p 604:

"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."

Between 1985 and 1993 the Law Commission returned to the topic of necessity on three separate occasions. In 1985 it published a report prepared by three professors of criminal law, who included Professor John Smith, on The Codification of the Criminal Law (1985 Law Com No. 143). Their recommendation (at para 13.26) was in these terms:-

"Necessity is not a topic to which we can apply our normal procedure of restatement, for which the present law does not provide suitable material. We cannot ourselves conduct a law reform exercise and propose a general defence of necessity of our own devising. And, as indicated above, we cannot support the Law Commission's totally negative proposals. In these circumstances our main proposal is that necessity should remain a matter of common law. That is, to the extent that the defence is now recognised, it should be unaffected by the Criminal Code Act; and (probably more important, because the present status of the defence is so limited and uncertain) the courts should retain the power that they now have to develop or clarify the defence. Necessity, that is to say, would fall within the general saving for common law defences declared by clause 49. Our only specific necessity provision is clause 46, which admits a defence in circumstances so closely analogous to those of the duress defence that it might indeed be 'the apotheosis of absurdity' to admit the one and to deny the other. The kind of situation catered for by clause 46 has, indeed, sometimes been called 'duress of circumstances'."

In 1989 the Law Commission itself accepted this recommendation without taking the matter any further (see A Criminal Code for England and Wales (1989 Law Com. No 177, Volume I, Draft Criminal Code Bill clauses 4(4) and 45(c), and the commentary in Volume II, para 12.41(ii)). Following further consultation the Law Commission maintained this approach in its report on Offences Against the Person and General Principles (1993 Law Com No 218). After discussing the defence of duress by threats, the Commission said at para 35.5 of this report:

"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."

The Commission went on to mention Lord Goff's speech in In re F (Mental Patient: Sterilisation [1990] 2 AC 1) where he had relied on the doctrine of agency of necessity as providing a legal justification for the sterilisation of a mentally incapable adult without her consent. It added (para 35.6):

"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."

It will be seen that the Law Commission envisaged that in exceptional circumstances a comparison might have to be made, perhaps as a matter of careful professional judgment and not in the throes of a life or death emergency, between the harm that otherwise unlawful conduct has caused (or would cause, if performed) and the harm that that conduct has avoided (or would avoid).

21. Necessity: modern academic writers

Those who prepared that report would have been familiar with a modern update of the "two men on a plank" dilemma (which dates back to Cicero, de Officiis) and the "two mountaineers on a rope" dilemma which was mentioned by Professor John Smith in his 1989 Hamlyn Lectures (published under the title "Justification and Excuse on the Criminal Law"). At the coroner's inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.

In his third lecture, "Necessity and Duress", Professor Smith evinced the belief at pp 77-78 that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there. The second was that unlike the ship's boy on the Mignonette, the young man, although in no way at fault, was preventing others from going where they had a right, and a most urgent need, to go, and was thereby unwittingly imperilling their lives.

I would add that the same considerations would apply if a pilotless aircraft, out of control and running out of fuel, was heading for a densely populated town. Those inside the aircraft were in any event "destined to die". There would be no question of human choice in selecting the candidates for death, and if their inevitable deaths were accelerated by the plane being brought down on waste ground, the lives of countless other innocent people in the town they were approaching would be saved.

It was an argument along these lines that led the rabbinical scholars involved in the 1977 case of conjoined twins to advise the worried parents that the sacrifice of one of their children in order to save the other could be morally justified. George J Annas, "Siamese Twins: Killing One to Save the Other" (Hastings Center Report, April 1987 at p 27, described how they:

"... 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".

There is, however, no indication in the submission we received from the Archbishop of Westminster that such a solution was acceptable as part of the philosophy he espoused. The judge's dilemma in a case where he or she is confronted by a choice between conflicting philosophies was thoughtfully discussed by Simon Gardner in his article "Necessity's Newest Inventions" (Oxford Journal of Legal Studies Vol II, 125-135). He explored the possibility of rights-based justifications based on a principle that otherwise unlawful actions might be justified where the infraction was calculated to vindicate a right superior to the interest protected by the rule, but he was perplexed by the idea that judges in a democracy could make their own decisions as to what was right and what was wrong in the face of established law prohibiting the conduct in question. The whole article requires careful study, but its author concluded that in jurisdictions where rights were guaranteed, the judicial vindication of a guaranteed right would be seen as protecting democracy rather than contravening it. This consideration does not, however, assist us in a case where there are conflicting rights of apparently equal status and conflicting philosophies as to the priority, if any, to be given to either.

Before I leave the treatment afforded to the topic of necessity by modern academic writers of great distinction (there is a valuable contemporary summary of the issues in the Ninth Edition of Smith and Hogan's Criminal Law (1999) at pp 245-252), I must mention the section entitled "Justifications, Necessity and the Choice of Evils" in the Third Edition (1999) of "Principles of Criminal Law" by Professor Andrew Ashworth. After referring to the facts of the Zeebrugge incident he said at pp 153-4:

"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."

22. Necessity: the work of Parliament

I turn now from twentieth century academic writing and the work of the Law Commission and its specialist working parties to consider the way in which Parliament and the courts have addressed these issues.

So far as I am aware, Parliament has never even debated these issues in a general sense, in spite of the recommendations of the Law Commission and the increasingly insistent pleas for Parliamentary assistance which have been made by senior judges in the context of the rapidly developing new defence of "duress of circumstances". Parliament has, however, to an increasing extent included "necessity" defences or justifications in modern offence-creating statutes, and where such provisions are present the Parliamentary intention is clear. In 1974 the Law Commission's Working Party identified such provisions in the Infant Life Preservation Act 1929 s 1(1), the Education Act 1944 s 39(2)(a), the Fire Services Act 1947 s 30(1), the Road Traffic (Regulation) Act 1967 s 79, the Abortion Act 1967 s 1(1) and the Road Traffic Act 1972 s 36(3). The Criminal Damage Act 1971 s 5(2)(b) provides another example from that period, and this statutory process has continued up to the present day, although, as is common with piecemeal law reform, the defences are not always framed along the same lines.

The Abortion Act provides a particularly good example of this process at work, expanding and clarifying the law for the benefit of the courts and for everyone else who, for whatever reason, needs to have recourse to the law in this controversial area. Before its enactment Macnaghten J in the case of R. v Bourne derived a "necessity" defence out of the word "unlawfully" in Section 58 of the Offences against the Person Act 1861 ("Any person who unlawfully uses an instrument with intent to procure a miscarriage shall be guilty of felony"). Macnaghten J said at p 691 that he thought that the word "unlawfully" imported the meaning expressed by the proviso in Section 1(1) of the Infant Life Preservation Act 1929 ("Provided that no person shall be guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother"). He went on to direct the jury at p 693:

"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".

That, as I have observed earlier, was the common law defence of necessity at work when a judge was interpreting what he believed Parliament must have meant when it used the word "unlawfully" in a codifying statute. Parliament's current intentions in this field are now clearly set out in the substituted Section 1(1) of the Abortion Act 1967. It would of course be very helpful, once Parliament has had the opportunity of considering the implications of the judgments in the present case, if it would provide similar assistance to the courts and to all other interested parties (and in particular parents and medical practitioners) as to what is legally permissible and what is not legally permissible in the context of separation surgery on conjoined twins. Parliament would of course now have to take account of the relevant provisions of the European Convention of Human Rights when formulating any new legislation.

23. Necessity: the courts and the defence of duress of circumstances

In addition to the major work that has been undertaken by Parliament in creating statutory excuses or justifications for what would otherwise be unlawful, the courts have also been busy in this field, at all events in those cases where a defendant maintains that he/she was irresistibly constrained by threats or external circumstances to do what he/she did.

So far as duress by threats is concerned, it was common ground between counsel that the solution to the present case is not to be found in the caselaw on that topic which Lord Hailsham has described as "that species of the genus of necessity which is caused by wrongful threats" (see R v Howe [1987] 1 AC 417, 429C). After no fewer than three split 3-2 decisions the House of Lords and the Privy Council have now both ruled that "duress by threats" is not available as a defence to murder (Howe) or attempted murder (R. v Gotts [1992] 2 AC 412): see also, in this series DPP for Northern Ireland v Lynch [1975] AC 653 and Abbott v The Queen [1977] AC 755.

The work of academic writers and of the Law Commission has, however, led to one significant development in the common law. This lies in the newly identified defence of "duress of circumstances". The modern development of this defence began in the field of driving offences.

In R v Kitson [1955] 39 Cr App R 66 the defendant, who had had a lot to drink, went to sleep in the passenger seat of a car driven by his brother-in-law. When later charged with driving car under the influence of drink, he said in his defence that when he woke up, he found that the driving seat was empty, and the car was moving down a hill with the hand brake off. He managed to steer the car into a grass verge at the bottom of the hill. He was convicted of driving a car under the influence of drink, and when the Court of Criminal Appeal dismissed his appeal on the basis that the ingredients of the offence were made out, and he had undoubtedly been driving the car within the meaning of the Act, nobody suggested that he was entitled to rely on a defence of necessity or duress of circumstances.

Thirty years later, this potential line of defence first saw the light of day in R v Willer (1986) 83 Cr App R 225. The defendant had been convicted of reckless driving (for which he was given an absolute discharge, although his licence was endorsed with ten penalty points) because he had been seen driving his car quite slowly on the pavement in front of a shopping precinct. He wished to defend the case on the basis that this had seemed to him to be the only way in which he could escape from a gang of 20-30 youths who had already banged on his car and threatened to kill him, and were now bent on doing him further violence. The assistant recorder, however, ruled that a defence of necessity was not available to him on those facts. On his appeal Watkins LJ said that the court doubted whether the defence of necessity was in point, but the court held that the jury ought to have been left to decide whether "the appellant was wholly driven by force of circumstances into doing what he did, and did not drive the car otherwise than under that form of compulsion, i.e. under duress".

A similar issue arose in R v Conway [1989] QB 290, another case of reckless driving. The defendant said that the reason why he had driven recklessly was that he was in fear for his life and that of his passenger. Woolf LJ said at pp 296-7 that the court found itself bound by the decision in Willer to rule that a defence of duress was available. He added that it was convenient to refer to this type of duress as "duress of circumstances" (being the expression adopted by the Law Commission's Criminal Code Working Party four years earlier: see 1985 Law Com No 143, para 13.26). He said that the defence would be available where the defendant was constrained by circumstances to drive as he did in order to avoid death or serious bodily harm to himself or some other person. He added that whether "duress of circumstances" was called "duress" or "necessity" did not matter. What was important was that whatever it was called, it was subject to the same limitations as the "do this or else" species of duress.

In R v Martin [1989] 1 All ER 652 Simon Brown J gave the judgment of the Court of Appeal (which included Lord Lane CJ) in a case where the defendant had wished to advance a defence to the effect that the only reason why he had driven while disqualified was that he had felt constrained to drive his stepson to work because his stepson had overslept. His case was that his wife (who had suicidal tendencies) had been threatening suicide unless he drove the boy to work, since she was so worried that her son might lose his job. Simon Brown J, relying on the earlier decisions in Willer and Conway, said that a defence was available to the defendant (however sceptically one might regard its prospects of success) and that he ought to have been allowed to place it before a jury. He added at pp 653g-654a:

"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."

In the course of the last eleven years, the scope of this defence has been broadened. In R v Pommell [1995] 2 Cr App R 607 the Court of Appeal ruled that it was available to a defendant convicted of possessing a loaded sub-machine gun who had wished to advance a defence to the effect that on the previous evening he had taken it "off a geezer who was going to do some damage with it". Kennedy LJ, giving the judgment of the court, said at pp 613E-614D:

"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". The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions."

However, that does not really deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accept as being a greater evil with a gun. In that situation it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth, and even if he is vindicated and given an absolute discharge, he is left with a criminal conviction which, for some purposes, would be recognised as such."

This reasoning is strikingly different from the reasoning in the context of a murder charge which led Lord Simon of Glaisdale (then in a minority) in DPP for Northern Ireland v Lynch [1975] AC 653 at p 687C-G and Lord Hailsham of St Marylebone in R v Howe [1987] 1 AC 417 at p 433C-G to hold that the availability of administrative as distinct from purely judicial remedies (the discretion not to prosecute, the Royal prerogative, the role of the Parole Board, etc) were strong enough techniques to "mitigate the hardships which might otherwise occur in the most agonising cases" (see Lord Hailsham in R v Howe at p 433D) if duress was not available as a defence to murder.

In R v Abdul-Hussain (CAT 17th December 1998: see [1999] Crim. LR 570) the Court of Appeal held that the defence of duress (whether by threats or from circumstances) was generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason. Rose LJ, speaking with the authority of the Vice-President of the Criminal Division of the Court of Appeal, said that this was now the fourth occasion in five years on which the court wished to emphasise the urgent need for legislation to define duress with precision.

In that case all the appellants except one (whose appeal was dismissed) had wished to put forward a defence to the effect that the reason why they had hijacked a Sudanese airbus on a flight from Khartoum to Amman and had forced it to fly to Stanstead Airport in England was that they were terrified that the Sudanese authorities might deport them to Iraq where they faced the prospects of imprisonment in conditions of extreme hardship, torture and summary execution.

Rose LJ said that the judgment of Simon Brown J in Martin afforded the clearest and most authoritative guide to the relevant principles in relation to both forms of duress. He also gave further guidance on the law as it now stands. In particular, he said that the imminent peril of death or serious injury to the defendant (or those for whom the defendant has responsibility) was an essential feature of both forms of duress, and that this peril must operate in the mind of the defendant at the time when he commits the otherwise criminal act (so as to overbear his will). The execution of the threat need not, however, be immediately in prospect. He added (see [1999] Crim LR 570) that

"the period of time which elapsed between the inception of the peril and the defendant's act was a relevant but not determinative factor; [and] that all the circumstances of the peril, including the number, identity and status of those creating it, and the opportunities (if any) to avoid it were relevant ...... when assessing whether the defendant's mind was affected so as to overbear his will".

In his judgment Rose LJ described how in the course of that hijacking an air hostess was seized and threatened with a plastic knife, an imitation grenade was produced (accompanied by a threat to blow up the plane), a knife was held for a very long time to the captain's back, passengers believed to be security officials were tied up, and one of the defendants pretended to instruct the others to blow up the plane if there was any movement on board. The defendants had declined to release the women and children at Larnaca, in Cyprus, where the plane stopped to refuel. The atmosphere on board was said to have been very tense.

I mention these facts to show that the Court of Appeal is now willing to entertain the possibility of a defence of duress even in a case as extreme as this if it is arguable that "the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged defence was no longer [his] voluntary act" (see R v Hudson [1971] 2 QB 202 per Lord Parker CJ at p 206E). The defence is available on the basis that if it is established, the relevant actors have in effect been compelled to act as they did by the pressure of the threats or other circumstances of imminent peril to which they were subject, and it was the impact of that pressure on their freedom to choose their course of action that suffices to excuse them from criminal liability.

I have described how in modern times Parliament has sometimes provided "necessity" defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity. They do not, however, cover exactly the same ground. In cases of pure necessity the actor's mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified.

24.Necessity: a Canadian perspective

In his judgment in R v Pommell Kennedy LJ cited an extract from the judgment of Dickson J, with which three other members of the Canadian Supreme Court agreed, in Perka v The Queen 13 DLR (4th) 1. In that case a ship bound on a voyage between Columbia and Alaska was driven by mechanical breakdowns and deteriorating weather to seek refuge on the west coast of Vancouver Island. Canadian police officers boarded the ship and seized over 33 tons of cannabis marijuana, which would not have come within the jurisdiction of the Canadian courts but for the emergencies which forced the ship to seek shelter in Canadian waters.

It was not in issue in that case that necessity was a common law defence, since it was expressly preserved by section 7(3) of the Canadian Criminal Code. What was in issue was whether it was available to the defendants on the facts. Dickson J held that although the residual defence of necessity could not be conceptualised as a justification for wrong-doing, it might properly be identified as an excuse where someone does a wrongful act under pressure which, in the words of Aristotle's Nichomachean Ethics, "overstrains human nature and which no one could withstand". He was therefore concerned with that type of necessity which in modern English law would be characterised as "duress of circumstances".

In her judgment Wilson J cavilled at Dickson J's conclusion that the appropriate jurisdictional basis on which to premise the defence of necessity was exclusively that of excuse. She was firmly of the view that a door should be left open, in an appropriate case, for justification to be adopted as the jurisdictional basis of the defence. She said that an act might be said to be justified where an essential element of the offence was absent, whereas an act might be excused if all the elements of the offence were present but the jury was requested to exercise compassion for the accused's predicament in its evaluation of his claim that "I could not help myself". In making this distinction Wilson J drew on the recent writings of Professor GR Fletcher ("The Individualisation of Excusing Conditions" 47 SO Cal.L.R. 1264 at p 1269 (1974)). She referred to some American cases as illustrations of situations where someone's criminally wrongful act was treated as "normatively involuntary", and therefore blameless, in the particular circumstances in which he or she was situated.

She could see no reason why a court should not regard an act as justified on the grounds of necessity if it could say that the act was not only a necessary one but that it was also rightful rather than wrongful. She did not think that the fact that one act was done out of a sense of immediacy or urgency and another after some contemplation could serve to distinguish its quality in terms or right or wrong. Instead, she considered that any justification of a wrongful act must be premised on the need to fulfil a legal duty which was in conflict with the duty which the accused was charged with having breached. She gave two Canadian cases as examples. In R v Walker (1973) 48 CCC (2d) 126, it was held to be legitimate to break the law where it had been necessary to rescue someone to whom one owed a positive duty of rescue (because failure to act in such a situation might itself constitute a culpable act or omission: see R v Instan [1893] 1 QB 450). In Morgentaler v The Queen [1976] 1 SCR 616 Laskin CJC (taking forward the thinking of Macnaghten J in R v Bourne) perceived a doctor's defence to an abortion charge as his legal duty to treat the mother rather than his alleged ethical duty to perform as unauthorised abortion.

At p 36 Wilson J said:

"....[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."

She made it reasonably clear, however, that she could not conceive of any circumstances in which this application of the doctrine of necessity could be extended to provide justification of an act of homicide. Her recourse to the principle of the universality of rights showed that she envisaged that everyone was of equal standing in relation to their right to life. For this reason she went on to say at p 36:

"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."

I found this a valuable way of forcing us to think more clearly about the reasons why it is ever permissible to admit a defence drawn from what Lord Hailsham would describe as the genus of necessity as a means of establishing that a defendant is not in law guilty of a crime even though the requirements of mens rea (a guilty mind) and actus reus (a guilty act) appear to be satisfied. In the last resort, however, it does not provide the solutions we are seeking in the present case for three reasons. The first reason is that English criminal law does not make any clear-cut distinction between a justification and an excuse. As Professor John Smith said at p 12 of his first Hamlyn lecture in 1989,

"Whether the act is one which society wants to be done, or merely tolerates, is a question which is not easy to answer if society has not expressed its wishes in the form of legislation or judicial decision. Not unnaturally there is a disagreement between the theorists. So far as the successful defendant is concerned, it matters not in the least whether the court, or anyone else, says that he is justified or merely excused; he is simply found not guilty in either event."

Secondly, as he points out at p 18 of that lecture, the distinction between those who save others out of a legal duty and those who do the same act for reasons which cannot be so characterised is not always very easy to sustain. Thirdly, Wilson J made it clear that she did not regard the analysis as available when someone's right to life was in question.

25. The European Convention on Human Rights

I have already observed how in 1983 Professor Glanville Williams discussed the way in which the increasing emphasis on the importance of human rights might be difficult to reconcile with the doctrine of necessity, being as it is an expression of the philosophy of utilitarianism. The fundamental importance of the right to protection of life is so ingrained in the English common law that I do not consider that any different solution to the dilemma we face can be found in the language of the European Convention of Human Rights ("ECHR") on which we received helpful oral submissions from Mr Owen and Mr Taylor in addition to Mr Anderson's written submissions.

I can take the ECHR points quite shortly because I have read in draft the judgment of Robert Walker LJ on these matters, with which I agree. I do not consider that the Woollin extension of the meaning of the word "intention" is appropriate when determining whether a doctor who performed a separation operation on conjoined twins in circumstances like these was intentionally killing the twin whose life was to be sacrificed. The doctor's purpose in performing the operation was to save life, even if the extinction of another life was a virtual certainty. Like Robert Walker LJ I do not consider that the adoption of an autonomous meaning of the word "intentionally" in Article 2(1) of the Convention need have any effect on the interpretation of the concept of "intention" in our national law, which has at long last been settled by the House of Lords in Woollin.

I should add that I was unattracted by Mr Owen's fall-back argument, to the effect that Article 2 contained an implied implication that the right it proclaims may be violated if it is in conflict with another person's Article 2 right. He based his argument on some words used by the European Commission on Human Rights in its decision in Paton v United Kingdom (App No 8416/78), 3 EHRR 408, 416, at para 23. The doctrine of inherent (or implied) limitation still appears to be in its infancy as a matter of Convention law (see Theory and Practice of the European Convention on Human Rights, Third Edition, by P van Dijk and GJH van Hoof at pp 763-5), and on the present state of Convention law I would be reluctant to hold, unless and until compelled to do so, that a right as fundamental as the right identified in Article 2 can be subject to an implied limitation which destroys its value.

Mr Anderson also relied, much less convincingly, on Articles 3 and 8 of the Convention. The medical evidence, which was not available to him, was to the effect that it is most unlikely that Mary can suffer pain, and I do not consider that her treatment during the course of the proposed operation (in which she will be under a general anaesthetic) could properly be described as inhuman or degrading within the meaning of Article 3. The facts of Ireland v United Kingdom A25 (1978), 2 EHRR 25, paras 96 and 167 and D v United Kingdom RSD 1997 – III 778, 24 EHRR 423, paras 51-53, are a very long way away from the present case. So far as Article 8 is concerned, once it is established on the welfare principle that Jodie's interests are to be preferred, then the reference to the protection of the rights and freedoms of others in Article 8(2) provides a justification for what would otherwise be a wrongful inference with Mary's Article 8(1) rights (which include a right not to be subjected to compulsory medical interference: see Peters v Netherlands 77A DR 75 (1994) at 79).

After this long analysis of the doctrine of necessity in our criminal law, I turn finally to the question whether it is, uniquely, available in the present case to provide a lawful justification for what would otherwise be an offence of murder.

26. Conclusion

I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens, supported as it was by the House of Lords in R v Howe. These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors. The first objection was evident in the court's questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality.

In my judgment, neither of these objections are dispositive of the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister's bloodstream.

It is true that there are those who believe most sincerely - and the Archbishop of Westminster is among them - that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary's life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in Section 1(1)(d) of the Abortion Act 1967 (as substituted) are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges.

There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency: see Lord Goff (in In re F at p 75D), the Law Commission in its recent report (Law Com No 218, paras 35.5 to 35.6), and Wilson J in Perka (at p 33).

There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with "unjust aggression", as Professor Glanville Williams has made clear in Section 26.3 of the 1983 edition of his book. None of the formulations of the doctrine of necessity which I have noted in this judgment make any such requirement: in this respect it is different from the doctrine of private defence.

If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.

According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.

Finally, the doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied them.

For these reasons I, too, would dismiss this appeal.

 

 

Lord Justice Robert Walker:

27.Conjoined twins

The tragic situation of Jodie and Mary is very rare in medical terms, and it appears to be unprecedented anywhere in the world in terms of full consideration of the legal position by a court. The basic statistics are that about one in ninety live births produces twins. About one in 250 live births produces monozygotic twins (identical twins from the division of a single fertilised ovum). Very rarely (a suggested figure is once in 100,000 births, although this figure is far from precise and seems to vary in different parts of the world) monozygotic twins fail to separate completely (as normally occurs about a fortnight after conception), resulting in conjoined twins. Rather over half of all conjoined twins are stillborn, and a further third both die within 24 hours. Only about 6 per cent of conjoined twins are classified as ischiopagus (joined at the pelvic level) and only about two per cent as ischiopagus tetrapus (joined at the pelvic level and having four legs).

Jodie's and Mary's medical condition is therefore very rare indeed. Their condition is even more exceptional in that - quite apart from abnormalities of their bodily organs in the region where they are joined - Mary has very grave defects in her brain, her heart, and her lungs. For practical purposes her lungs are non-existent. She is wholly dependent for life on oxygenated blood circulated through Jodie's lungs and Jodie's heart. The consultant paediatric and neonatal surgeon, Mr B, has described her as "totally supported" by Jodie. It is the strain on Jodie of supporting her sister as well as herself which is very likely to lead to the deaths of both twins within a matter of months, if they remain joined, because Jodie is likely to suffer what is called high output heart failure. There is no practical possibility of Mary being put on a heart-lung machine or receiving a heart-lung transplant. In an article (Hoyle and Thomas, 1989) reviewing 33 separations of ischiopagus tetrapus twins reported throughout the world between 1955 and 1986, only two seem to have been cases in which, for reasons other than a shared vital organ, one identified twin had no prospect of surviving the surgery (one was already dying when the surgery was undertaken, and the other was anencephalic).

The legal position has been considered in some published articles, including an article by Sally Sheldon and Stephen Wilkinson (Conjoined twins: the legality and ethics of sacrifice [1997] Medical Law Review 149) which contains a helpful discussion. But the only decision of a court referred to in any of the medical and legal literature is the decision in 1977 of a three-judge panel of the Family Court in Philadelphia which authorised an operation to separate thoracopagus twins with a conjoined heart (see George J Annas, Siamese twins: Killing one to save the other, Hastings Center Report April 1987). The article also mentions a similar operation in Philadelphia in 1987 in which the hospital obtained prior clearance from the District Attorney and approval from its own ethics committee, but did not go to court. It appears that in the 1977 case the parents (who were deeply religious Jews) had consented to the operation after taking rabbinical advice; and the hospital nurses (most of whom were Roman Catholics) had also been reassured by a priest. The application to the Family Court was made by the surgeon for his own protection. It does not appear whether the Family Court gave a reasoned judgment (the court is said to have deliberated for only a few minutes, so probably it did not).

In these circumstances this court has to start with some very basic questions. Are these conjoined twins two persons or one in the eyes of the law? If they are two persons, was Mary born alive? (If she was not born alive, there can be no possible question of criminal liability for her unlawful killing.)

Mr Adrian Whitfield QC (appearing with Mr Huw Lloyd for the Healthcare Trust) conceded that Jodie and Mary must be regarded as two separate persons, and he was clearly right to do so. They have two brains and two nearly complete bodies, despite the grave defects in Mary's brain and her heart and lungs. There are cases of incomplete (or heteropagus) twinning in which a child is born with abnormalities which can be regarded as no more than a parasitic attachment. But it has not been and could not be suggested that this case comes anywhere near that category.

The evidence also indicates that Mary, although incapable of separate existence, was born alive. A "still-born" child is defined (by the Births and Deaths Registration Act 1953 s.41, as amended) as

"a child which has issued forth from its mother after the twenty-fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any signs of life."

The medical notes from the hospital show that Mary was struggling to breathe, although sadly in vain, when she and Jodie were brought from the operating theatre into the recovery ward. Mr B (who would lead the operating team) was clear in his oral evidence to this court that Mary was not still-born, but that she could not be resuscitated and was not viable. Since her umbilical cord was cut she has been dependent for life on her sister. The fact that she is alive as a distinct personality, but is not viable as a separate human being, is the awful paradox at the centre of this case.

The definition in the 1953 Act applies only for the purposes of that statute, but it appears to correspond closely (except in the precision of the minimum 24-week term, which is not relevant here) to the position at common law: see generally the full historical review by my lord, Brooke J in Rance v Mid-Downs Health Authority [1991] 1 QB 587, 617-23. Mr David Harris QC (appearing with Mr Andrew Hockton, instructed by the Official Solicitor, for Mary) drew the court's attention to some passages in the speeches in Airedale NHS Trust v Bland 1993 AC 789 (most notably in the speech of Lord Browne-Wilkinson at pp.878-9) pointing out that as medical science has developed new techniques and equipment for the prolongation of human life, the law has had to redefine death (in terms of brain-stem death rather than cessation of unaided cardiovascular functioning). Mr Harris submitted that just as the law has had to redefine death, so it may have to redefine the concept of being born alive. There are a number of difficulties in the way of that argument but they need not be considered further since Mr Whitfield (and all other counsel who might have been concerned to argue the contrary) have rightly conceded that Mary is a human being and was born alive.

It hardly needs to be said that there is no longer any place in legal textbooks, any more than there is in medical textbooks, for expressions (such as 'monster') which are redolent of superstitious horror. Such disparagingly emotive language should never be used to describe a human being, however disabled and dysmorphic. But having studied the medical evidence and the photographs, the court must recognise that if the twins remain as they are, solidly joined at their trunks, with their genitals and legs at right angles to their bodies, and if the specialists from Great Ormond Street Hospital prove right in their prediction that a longer life-span is possible, there would be grave physical and (for Jodie) psychological problems to be faced. The appellant parents' counsel, Mr Simon Taylor, himself used emotive language to describe that prospect when he drew attention to the new medical evidence.

28.The welfare principle

The twins are not wards of court, nor have they been taken into care under the Children Act 1989. The Healthcare Trust's application to the court was made under the inherent jurisdiction of the court. But the proceedings are proceedings with respect to the twins' upbringing (which is defined in s.105 of the Children Act so as to include care). Therefore the court is bound by the overriding welfare principle in s.1(1) of that Act:

"the child's welfare shall be the court's paramount consideration."

In this case the court has to consider the welfare (or best interests - the expressions are synonymous) of each of the twins. The court has on several occasions had to consider a situation in which the interests of two minors appeared to be in conflict. In Birmingham City Council v H (a minor) [1994] 2 AC 212 the House of Lords had to consider a conflict between the interests of a mother (aged 14 when her child was born) and her son (who was aged 2 when the appeal was heard). The issue was resolved on the narrow ground that the only question to be determined by the court was in respect of the baby's upbringing. But in cases where questions as to the upbringing of two siblings are before the court, it appears that the court must normally undertake a balancing exercise to achieve the situation of least detriment, as the Court of Appeal had held in the case of the child mother and her baby: see Re H [1993] 1 FLR 883; also Re T and E (proceedings: conflicting interests) [1995] 1 FLR 581, 584-7.

However the decisions in which those conflicts of interests arose were decisions as to matters such as residence and contact which, however anxious and difficult, are routinely made by family judges. They were not decisions on a matter of life or death. The notion that the court should ever undertake the evaluation of the lives of two innocent human beings, with a view to deciding which should live and which should die, could not be reconciled with the law's respect for the sanctity (or inviolability) of human life, either before or after the incorporation of the European Convention on Human Rights. In his enumeration of the salient principles in Airedale NHS Trust v Bland [1993] AC 789, 808, Sir Thomas Bingham MR put this first:

"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."

This court has been shown many similar statements, both in law reports and in academic work, but it is unnecessary to multiply citations.

The court was referred to a number of reported decisions in which judges of the Family Division, or this court, have authorised the withdrawal of treatment (or the withholding of treatment on a future emergency) in the case of severely disabled children. It is not necessary to refer to all the cases which were cited. All are concerned primarily with the question of the best interests of a single child, and the weight to be given to the wishes of devoted parents. None goes far into the issue of lawfulness, since it did not arise.

In Re B (a minor) (wardship: medical treatment) [1981] 1 WLR 1421 this court (reversing the trial judge) authorised surgery, against the parents' wishes, for an intestinal blockage of a Down's syndrome baby who was only a few days old. The baby was not very severely disabled. In Re J (a minor) (wardship: medical treatment) [1991] Fam 33 this court (upholding the trial judge) authorised non-resuscitation (on a future emergency) of a six-month-old child who had been born very prematurely and had suffered very severe brain damage. Lord Donaldson MR said (at p.46):

"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."

In the same case Taylor LJ set out three principles which were not in dispute. The first related to the welfare principle and the weight to be given to parents' wishes. Taylor LJ went on (at p.53):

"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."

In Re T (wardship: medical treatment) [1997] 1 FLR 502 this court (reversing the trial judge) upheld the objections of devoted parents to an 18-month-old child undergoing an operation for a liver transplant after previous surgery had been unsuccessful, and had caused the child pain and distress. Butler-Sloss LJ (who was a member of the court) has since described the case as exceptional and as lying near one end of the spectrum of cases. One of its special features was that if the child were to have a successful liver transplant, it would require total commitment by the caring parent to the proposed treatment.

Re T (wardship: medical treatment) confirms, following Re Z (identification: restrictions on publication) [1997] Fam 1, that where parents withhold consent to a particular course of action the court's function is not limited to reviewing the parents' decision and reversing it only if it is unreasonable (as with an appellate court asked to reverse a lower court's exercise of discretion). The court exercises its own judgment. In Re Z Sir Thomas Bingham MR put it as follows (at pp 32-3):

"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."

There are to my mind particularly strong reasons for having regard to the parents' views in this case, even if they have been (as the judge put it) "overwhelmed by the circumstances that confront them". They have sincerely-held religious views (formed after discussion with a priest near the hospital, and now backed by the Archbishop of Westminster). Their views might be described as controversial but (unlike the objections to blood transfusion held by Jehovah's witnesses) they are not obviously contrary to any view generally accepted by our society. Still less are their views contrary to those generally accepted in the remote community from which they have come to this country. Healthcare services (and, it may be, social security) are less readily available in that community and the parents are naturally concerned about what the future would hold. No one suggested that it was selfish or unreasonable that they should have concerns about their ability, either financially or personally, to care for Jodie at home, if there is a separation operation which Jodie alone survives (they assume that there is no possibility of their taking both twins home without separation). That is so, I think, even if they have taken what is on the medical evidence a rather pessimistic view of the likely outcome for Jodie after elective surgery.

I would add, to avoid any possible misunderstanding, that the doctors and officers of the Healthcare Trust have themselves shown every consideration to the parents. This court has had the benefit of hearing oral evidence from Mr B, and has read transcripts of all the oral evidence given to the judge. It is impressive both for its sensitivity to the feelings and wishes of the twins' parents, and for its intellectual honesty. The medical specialists have faced up to the consequences for Mary of elective separation, but remain of the view that that separation is the best course.

The judge (who did not have the benefit of the very full and carefully-prepared arguments which this court has heard, and for which we are greatly indebted to all counsel and solicitors in the case) dealt with the matter by considering first the best interests of Jodie, then the best interests of Mary, and then (as a separate matter) the issue of lawfulness. Those issues are (in all too real a sense) not easily separated, and Mary's best interests cannot be fully considered except in the context of the decision of the House of Lords in Airedale NHS Trust v Bland [1993] AC 789, and the (perhaps even more difficult) questions of possible unlawfulness and criminal liability which arise on the facts of this case.

So far as it was appropriate to consider Jodie's best interests on their own the judge had ample material on which to conclude, as he did, that elective separation of the twins would be in the best interests of Jodie, despite the risk (which is put at about 6 per cent) of her not surviving the operation, and despite the risks of her quality of life being affected by incontinence, difficulty in walking, and the need for protracted reconstructive surgery. Those are risks - not probabilities, still less near-certainties - and they were fully addressed in the medical evidence. The judge mentioned them at the beginning of his judgment. Nevertheless he rightly said that for Jodie separation means the expectation of a normal life.

The judge came to the conclusion that separation would also be in Mary's best interests, even though it would result in her immediate death. As I have said, this raises very difficult issues. At present I deal primarily with the judge's findings of fact about Mary's condition. It is uncertain how far she can feel pain, but the evidence did not positively establish that she cannot feel pain. It did establish that she cannot cry, as she has no effective lungs. The judge was obviously very concerned about that, and about the prospect of Mary being caused pain and discomfort as Jodie becomes more mobile. He referred to the oral evidence of the paediatric neurosurgeon:

"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."

Mr Taylor and Mr Harris have respectfully but firmly criticised the judge for fastening on this evidence, to the exclusion of other evidence that Mary probably cannot feel pain. There may be some force in that criticism, although this court would be slow to differ from the findings of this very experienced family judge who had seen and heard all the witnesses. But even if it were assumed that Mary is no more capable of feeling pain or discomfort than she is of any pleasant sensation or emotion, it is hard to see any benefit to her from continued life. In Bland Lord Goff (at p.868) drew a distinction between cases in which the patient has (or may come to have) some awareness of his or her quality of life, and cases of total unconsciousness. Whichever category Mary should be put in I do not differ from the judge's conclusion that to prolong Mary's life for a few months would confer no benefit on her but would be to her disadvantage. If Mary had been born separated from Jodie but with the defective brain and heart and lungs which she has, and if her life were being supported, not by Jodie but by mechanical means, it would be right to withdraw that artificial life-support system and allow Mary to die.

29. Airedale NHS Trust v Bland

The facts of Airedale NHS Trust v Bland [1993] AC 789 are well known. A young man (aged 17 at the time of his injury, but of full age at the time of the application to the court) was so severely injured in the Hillsborough disaster that he was in a persistent vegetative state. His cerebral cortex had been destroyed and he had no awareness of his condition and no sensation of pain. But his brain stem was alive and (although he could not swallow and required feeding through a nasal tube) he could breathe spontaneously. (His condition was therefore the converse of a patient with Guillain-Barré syndrome as in the Canadian case of Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385; she had all her mental faculties but could not breathe and depended for continued life on a ventilator. The patient in the New Zealand case of Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 was in a more advanced state of that syndrome, in which the brain is alive but incapable of controlling the body because the conductivity of the nervous system has been destroyed.)

In the Bland case the House of Lords (upholding this court and the President of the Family Division) authorised the withdrawal of treatment (that is, artificial nutrition and hydration) but made clear that positive action to bring about the patient's death would be unlawful. Lord Goff said [1993] AC 789, 865,

" ... 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."

The practical result was that the patient died slowly from lack of nutrition and hydration, a process which caused him no pain, but which seems likely to have caused distress to the nurses who were caring for him. Switching off a ventilator is also regarded as a withdrawal of treatment (that is, as an omission rather than a positive act) even though it results (and is expected to result) in immediate death.

Many of the judges who considered the Bland case were understandably anxious about the intellectual robustness of the distinction between death brought about by an omission, on one hand, and death caused by a positive act, on the other hand. That appears very clearly in the speech of Lord Mustill. He said (at p.887):

"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."

At pp.897-8 he set out an argument which he regarded as "logically defensible and consistent with the existing law", but added (at p.898):

"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, 6th 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."

To the same effect Lord Lowry referred (at p.877) to a possible "distinction without a difference". Several of their lordships referred to the need for these questions of life and death to be determined by the democratic processes of Parliament, rather than by the court.

The switching-off or disconnection of a ventilator has also been regarded by the New Zealand court as a withdrawal of treatment: see the judgment of Thomas J in Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235, to which Lord Goff (at p.867) paid tribute in Bland. The Canadian case of Nancy B was different in that the court's function was to recognise the rights of self-determination of a mentally competent but physically disabled patient.

The decision of the House of Lords in Bland has (unsurprisingly, in view of its very controversial subject-matter) attracted criticism. So far as legal academic literature is concerned this court has been referred in particular to two well-argued articles in the Law Quarterly Review, (1993) 109 LQR 329 (Professor Finnis) and (1997) 113 LQR 481 (Dr Keown). But as Parliament has not since 1993 intervened to make any change in the law the decision in Bland is binding on this court, and it is important to identify the principle of the decision as precisely as possible.

The following points seem to be stated or approved in all five of their lordships' speeches and led to the result that the appeal in Bland should be dismissed. (1) The artificial feeding of the patient through a nasogastric tube constituted (at any rate in conjunction with other nursing care) medical treatment. (2) The discontinuance of artificial feeding should be regarded as an omission, since although the removal of the tube was a positive act the substance of the matter was the discontinuance of a treatment; and an omission to give treatment could not be unlawful or contrary to the patient's best interests unless there was a duty to treat him. (3) There was no duty on the doctors to administer to the patient treatment which was futile and contrary to his best interests. (4) None of this authorises or legalises a positive act intended to cause the patient's death, since (as Lord Goff put it at p.866) the law "does not, for reasons of policy, consider that it forms any part of [a doctor's] duty to give his patient a lethal injection to put him out of his misery." It is that reasoning which led Lord Goff to say (at p.868),

" ... the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care."

30. The judge's decision and the issues in the appeal

The judge considered whether elective separation would be in the best interests of Jodie and whether it would be in the best interests of Mary. In each case he concluded that it would be. He then considered the question of lawfulness, which he regarded as the most difficult element in his decision. If the operation is carried out Mary's death would be the inevitable result of positive action by the surgeons, who would at some stage place a clamp within Jodie's body and cut off the supply to Mary's body of oxygenated blood from Jodie's heart and lungs. She would die immediately. The judge said that he had not been presented with any argument based on the doctrine of double effect. He referred to the difficulty in this area of distinguishing between an act and an omission, and to the 'Rubicon' which might be crossed. This was an indirect reference to a passage (already cited) in the speech of Lord Goff in Bland, [1993] AC 789, 865. Having referred to these difficulties the judge said:

"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."

There are some serious difficulties about this way of looking at the case, as Mr Taylor and Mr Harris have pointed out. It is impossible, they submitted, to describe the proposed surgery as being a withdrawal of treatment. It is active surgical intervention which will be invasive of the bodies of both Jodie and Mary, and will result in the latter's death. Nevertheless Mr Harris recognised that the principle of bodily integrity, which is fundamental to the court's approach to these problems, is difficult to apply in the case of conjoined twins. Where twins are born alive but conjoined their physical integrity and autonomy has already been gravely prejudiced by the rare accident of incomplete separation at an early stage of gestation. But Mr Harris urged this court to take a principled approach, and not to decide this case in a way which might distort the development of the law. In this context he and other counsel drew attention to some cautionary observations in recent cases in the House of Lords (R v Kingston [1995] 2 AC 355, 375, 377; Hunter v Canary Wharf [1997] AC 655, 707; Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, 378-9).

The case put forward by Mr Taylor and Mr Harris is straightforward, and is supported by two important decisions of the House of Lords. A surgical operation to separate the twins would be a deliberate, positive act. It would be invasive of Mary's body and it would cause her death. Necessity, counsel said, is not a defence to murder: R v Howe [1987] AC 417. Nor is it a defence to say that the defendant did not wish to cause death, if it is for all practical purposes inevitable that that will be the result of his actions: R v Woollin [1999] 1 AC 82. Nothing in the cases on medical treatment, including Bland, is in any way inconsistent with those principles.

Against that apparently simple and compelling case various lines of argument have been put forward by those counsel who argued for elective separation (that is Mr Whitfield and Mr Tim Owen QC, who appeared for Jodie to argue the issues of criminal law; they received some degree of support from Miss Nicola Davies QC, Mr David Perry and Mr Gareth Patterson, who were appointed by the Attorney-General to assist the court, but made clear that they were not arguing for any particular outcome). These arguments overlap to some extent, as became apparent as soon as counsel's written submissions were delivered. It is convenient to note at the outset certain lines of argument which were not pursued (at any rate with any enthusiasm) in this court. No one argued that Mary could not be a victim of unlawful killing. No one other than Mr Whitfield argued that the operation could be equated with a withdrawal of treatment such as was regarded (in Bland) as an omission. That seems to have been the ground on which the judge based his decision as to lawfulness. Mr Whitfield sought to uphold this ground of decision, while candidly recognising the difficulties in his way. He pointed out that in the proposed operation no bodily organ or skin of Mary's would be transferred to Jodie (their shared bladder would be divided into two). Nevertheless it would be invasive of Mary's body. On the clear and undisputed evidence as to what the proposed operation would involve, it cannot be described as a withdrawal of treatment, or as an omission rather than a positive act.

The main submissions in favour of upholding the judge's order were based on intention and necessity (including the species of necessity sometimes referred to as private defence); and some counsel (although not Miss Davies) also relied on the doctrine of double effect, which no one had relied on below, but which can be seen as a sort of bridge between the issue of intention and the issue of necessity. The arguments run into each other. What follows is a summary treatment of difficult issues which are more fully and profoundly considered in the judgment of Brooke LJ.

31. Criminal law issues

There are various ways in which English criminal law gives effect to the general intuitive feeling that a defendant should not be convicted of a serious crime unless he did the prohibited act intentionally and in circumstances in which he should be held responsible for the consequences. Many of these are concerned with cases (which can all be loosely called cases of necessity) where the defendant's freedom of choice has in one way or another been constrained by circumstances.

But if a defendant's action is of its nature certain, or virtually certain, to produce a harmful result, he cannot normally be heard to say that he did not intend that result. In R v Woollin [1999] 1 AC 82 an angry father threw his three-month-old son on to a hard surface. The child suffered a fractured skull and died. The father was convicted of murder but because of a misdirection the House of Lords allowed his appeal (substituting a verdict of guilty of manslaughter). That was the context in which their lordships approved (as part of a model direction to the jury) the passage at p.96:

"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 decision of the House of Lords in Woollin has (it is to be hoped) finally resolved a debate as to the mental element requisite for murder ("malice aforethought" is the traditional but archaic phrase) which has been continuing intermittently since DPP v Smith [1961] AC 290, with legislative intervention in the form of s.8 of the Criminal Justice Act 1967. Mr Owen submitted that Woollin may have to be reconsidered in the light of the Human Rights Act 1998 and Article 2 of the European Convention on Human Rights. I would not accept that submission, if it were relevant, for reasons set out later in this judgment.

However the stark facts of Woollin and the speeches in the House of Lords in that case say nothing at all about the situation in which an individual acts for a good purpose which cannot be achieved without also having bad consequences (which may be merely possible, or very probable, or virtually certain). This is the doctrine (or dilemma) of double effect which has been debated by moral philosophers (as well as lawyers) for millennia rather than centuries. In one class of case the good purpose and the foreseen but undesired consequence (what Bentham called 'oblique intention') are both directed at the same individual. That can be illustrated by a doctor's duty to his patient. The doctor may in the course of proper treatment have to cause pain to the patient in order to heal him. Conversely he may in order to palliate severe pain, administer large doses of analgesics even though he knows that the likely consequence will be to shorten the patient's life. That was recognised by Lord Donaldson MR in the passage of his judgment in Re J which I have already cited (note its references to primary purpose and side effects; similar language was used by Ognall J in his summing-up to the jury in R v Cox (1992), the case of the doctor who administered potassium chloride to a dying patient). Similarly Lord Goff referred in Bland (at p.867) to

" ... 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."

In these cases the doctrine of double effect prevents the doctor's foresight of accelerated death from counting as a guilty intention. This type of double effect cannot be relevant to conduct directed towards Mary unless the mere fact of restoring her separate bodily integrity, even at the moment of death, can be seen as a good end in itself and as something which ought to be achieved in the best interests of Mary as well as Jodie.

There is another class of case in which a person may be faced with the dilemma of whether to save himself or others at the cost of harm or even death to a third person. The dilemma generally rises as the result of an emergency, and the examples (real or imagined) are typically concerned with disasters at sea, or emergencies during mountaineering or other hazardous activities. If a person, faced with such a dilemma, acts with the intention of saving his own life (or the lives of others) it may be said that that leaves no room for a guilty intention to harm or even kill the third person. Equally it may be said that although he must (on Woollin principles) be taken to have intended the death which he foresaw as virtually certain, he has a defence of necessity. That is the way the submission was put by Miss Davies.

Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engineroom. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engineroom. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellow-climber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, "You did right". This incident is mentioned in Professor Smith's 1989 Hamlyn Lectures, Justification and Excuse in the Criminal Law, p.79.

The House of Lords has made clear that a doctrine of necessity does form part of the common law: see Re F (mental patient: sterilisation) [1990] 2 AC 1 (especially in the speech of Lord Goff at pp.74-8) and R v Bournewood Community and Mental Health Trust ex parte L [1999] 1 AC 458. In the latter case Lord Goff said (at p.490):

"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."

In R v Howe [1987] AC 417 the House of Lords held that duress by threats is no defence to a charge of murder (and in R v Gotts [1992] 2 AC 412 that has, by a bare majority, been extended to attempted murder; the dissenting speech of Lord Lowry merits careful study). In Howe Lord Hailsham (at p.429) referred to what he called the famous and important case of R v Dudley and Stephens (1884) 14 QBD 273, in which two shipwrecked mariners, adrift in a boat, killed the ailing cabin-boy and survived by eating his flesh. They were convicted of murder but the death sentence was commuted. Lord Hailsham said that that case was generally regarded as an authority on the "supposed defence of necessity" but he went on,

"There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. 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 threats."

Similarly the defence of private defence (action in defence of one's own life, person or property, or in defence of the life, person or property of another) can be seen as a species of a more general defence based on necessity. The law lays great stress on action in self-defence being no more than is necessary: see Palmer v R (1971) AC 814, especially at pp.828-9. But it is clear that deliberate killing in self-defence can sometimes be justified.

Duress of circumstances can therefore be seen as a third or residual category of necessity, along with self-defence and duress by threats. I do not think it matters whether these defences are regarded as justifications or excuses. Whatever label is used, the moral merits of the defence will vary with the circumstances. The important issue is whether duress of circumstances can ever be a defence to a charge of murder. There is authority that it can be a defence to the very serious crime of aircraft hijacking contrary to s.1 of the Aviation Security Act 1982 (for which the maximum punishment is life imprisonment) : see R v Abdul-Hussain and others (Court of Appeal Criminal Division, 17 December 1998). The judgment of the court in that case, delivered by Rose LJ, examined the development of the defence. Rose LJ stated the principles which he derived from the authorities, the first three principles being as follows:

"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.

2. 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).

3. 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)."

The hijacking case concerned Shiite Muslims from southern Iraq. Many members of their families had been tortured and killed and they faced similar threats. Duress of circumstances was therefore a much more suitable description of their plight than the dilemma facing the doctors in this case. The doctors are not faced with any threat to themselves, but they are faced with the anxious dilemma of trying to perform the professional duties which they owe to their two infant patients.

The special features of this case are that the doctors do have duties to their two patients, that it is impossible for them to undertake any relevant surgery affecting one twin without also affecting the other, and that the evidence indicates that both twins will die in a matter of months if nothing is done. Whether or not that is aptly described as duress of circumstances, it is a situation in which surgical intervention is a necessity if either life is to be saved.

I do not find any clear principle in R v Howe, R v Gotts or R v Abdul-Hussain which applies to the clinical dilemma which faces the doctors in this case. Like the other members of the court I have derived assistance from the minority judgment of Wilson J given in the Supreme Court of Canada in the case of Perka and other v The Queen (1984) 13 DLR (4th) 1. The facts of that case were totally different (a ship used by drug smugglers had been driven ashore by a storm) but the judgment of Wilson J discusses the underlying principles and the importance of a conflict between legal (as opposed to moral) duties.

Wilson J said at pp.34-5,

"Accordingly, not only can the system of positive law not tolerate an individual opting to act in accordance with the dictates of his conscience in the event of a conflict with legal duties, but it cannot permit acts in violation of legal obligations to be justified on the grounds that social utility is thereby increased. In both situations the conflicting "duty" to which the defence arguments point is one which the court cannot take into account as it invokes considerations external to a judicial analysis of the rightness or wrongness of the impugned act. As Lord Coleridge CJ succinctly put it in Dudley and Stephens, supra, at p.287: "Who is to be the judge of this sort of necessity?"

On the other hand, in some circumstances defence counsel may be able to point to a conflicting duty which courts can and do recognize. For example, one may break the law in circumstances where it is necessary to rescue someone to whom one owes a positive duty of rescue (see R v Walker) (1979), 48 CCC (2d) 126, 5 MVR 114 (Ont. Co. Ct.)), since failure to act in such a situation may itself constitute a culpable act or omission: see R v Instan, [1893] 1 QB 450. Similarly, if one subscribes to the viewpoint articulated by Laskin CJC in Morgentaler, supra, and perceives a doctor's defence to an abortion charge as his legal obligation to treat the mother rather than his alleged ethical duty to perform an unauthorized abortion, then the defence may be invoked without violating the prohibition enunciated by Dickson J in Morgentaler against choosing a non-legal duty over a legal one."

She said at p.36

"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.

As the facts before the court in the present case do not involve a conflict of legal duties it is unnecessary to discuss in detail how a court should go about assessing the relative extent of two evils. Suffice it to say that any such assessment must respect the notion of right upon which justification is based. 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."

Wilson J's reference to a conflict of duties in relation to abortion must be treated with caution because of the well-established rule that English law (like Canadian law, but here differing markedly from the teaching of the Roman Catholic church) does not regard even a viable full-term foetus as a human being until fully delivered: see the account in Rance v Mid-Downs HA [1991] 1 QB 587, 617-23 to which I have already referred, and also St George's Healthcare NHS Trust v S [1999] Fam 26, 45-50. There is in law no real analogy between Mary's dependence on Jodie's body for her continued life, and the dependence of an unborn foetus on its mother.

In truth there is no helpful analogy or parallel to the situation which the court has to consider in this case. It is unprecedented and paradoxical in that in law each twin has the right to life, but Mary's dependence on Jodie is severely detrimental to Jodie, and is expected to lead to the death of both twins within a few months. Each twin's right to life includes the right to physical integrity, that is the right to a whole body over which the individual will, on reaching an age of understanding, have autonomy and the right to self-determination: see the citations from Bland collected in the St George's Healthcare case at pp.43-5.

In the absence of Parliamentary intervention the law as to the defence of necessity is going to have to develop on a case by case basis, as Rose LJ said in R v Abdul-Hussain. I would extend it, if it needs to be extended, to cover this case. It is a case of doctors owing conflicting legal (and not merely social or moral) duties. It is a case where the test of proportionality is met, since it is a matter of life and death, and on the evidence Mary is bound to die soon in any event. It is not a case of evaluating the relative worth of two human lives, but of undertaking surgery without which neither life will have the bodily integrity (or wholeness) which is its due. It should not be regarded as a further step down a slippery slope because the case of conjoined twins presents an unique problem.

There is on the facts of this case some element of protecting Jodie against the unnatural invasion of her body through the physical burden imposed by her conjoined twin. That element must not be overstated. It would be absurd to suggest that Mary, a pitiful and innocent baby, is an unjust aggressor. Such language would be even less acceptable than dismissing Mary's death as a 'side-effect'. Nevertheless, the doctors' duty to protect and save Jodie's life if they can is of fundamental importance to the resolution of this appeal.

32. The European Convention on Human Rights

Article 2 of the European Convention on Human Rights provides for the right to life. It is in the following terms:

"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 right has, naturally enough, been described as one of the most fundamental provisions of the Convention (McCann v United Kingdom A 324 (1995), para 146).

Article 2 was in the forefront of the written submissions of Mr David Anderson QC on behalf of the Pro-Life Alliance. Mr Anderson also made submissions based on Articles 3 and 8 of the Convention and on Article 2 of the Fourth Protocol to the Convention. The last-mentioned submissions would be relevant only if there were a dispute, which at present there is not, about the twins being moved to another country. Mr Anderson's submissions on Article 2 of the Convention were on the same lines as those of Mr Taylor and Mr Harris, but were more fully developed. Mr Anderson submitted that the word "intentionally" in Article 2 (1) should be given its natural and ordinary meaning, and that the Strasbourg jurisprudence has no hint of the doctrine of double effect. It does not admit of necessity. The positive obligation in the first sentence of Article 2(1) (which is the only provision on which Jodie could rely) is a very much weaker obligation (see Osman v United Kingdom 1998 - V111 3124, para 116).

Mr Owen did not seek to rely on any part of Article 2(2). He rightly accepted that Mary's dependence on Jodie's cardiovascular system, however life-threatening to Jodie, could not be described as unlawful violence. But Mr Owen and Mr Whitfield both relied strongly on the word 'intentionally' (in French 'intentionnellement') in Article 2(1). Mr Owen seized on Mr Anderson's submission that the word should be given its natural and ordinary meaning. That meaning, he said, was limited to the purpose of an action. The Woollin principle, extending intention to foreseen but undesired consequences, did not apply. That was why the draftsmen of Article 2 did not think it was necessary to include further qualifications relating to double effect. (Mr Owen went so far as to submit that the Woollin principle will have to be modified as a result of the coming into force of the Human Rights Act 1998. I do not follow that submission. The Convention does not in any way restrict a contracting state as to how the most serious form of homicide is defined in its domestic law.)

Mr Anderson's submissions were clearly and skilfully developed but I do not accept them. The Convention is to be construed as an autonomous text, without regard to any special rules of English law, and the word "intentionally" in Article 2(1) must be given its natural and ordinary meaning. In my judgment the word, construed in that way, applies only to cases where the purpose of the prohibited action is to cause death. It does not import any prohibition of the proposed operation other than those which are to be found in the common law of England. The coming into force of the Human Rights Act 1998 on 2 October next does not therefore alter my view of the case. The incorporation of the Convention into domestic law is a very important event but in this case its effect is to confirm, and not to alter, pre-existing law.

33. The Archbishop's submissions

This court has also accepted written submissions made by the Roman Catholic Archbishop of Westminster, the Most Reverend Cormac Murphy-O'Connor. Those submissions make five salient points based on Roman Catholic faith and morality. These are, first, that human life is sacred and inviolable. Secondly, a person's bodily integrity should not be invaded when that can confer no benefit. Thirdly, the duty to preserve one person's life cannot without grave injustice be effected by a lethal assault on another. Fourthly, there is no duty on doctors to resort to extraordinary means in order to preserve life. Fifthly, the rights of parents should be overridden only where they are clearly "contrary to what is strictly owing to their children". The rest of the submissions are very largely submissions as to English law and cover points already considered in this judgment.

The five salient points made by the Archbishop are entitled to profound respect. In general they underpin some important foundations of English law (although the fifth point does not form part of English law) and they have no doubt been reflected in the advice which the twins' parents have received from their local priest. But they do not explain or even touch on what Roman Catholic moral theology teaches about the doctrine of double effect, despite its importance in the Thomist tradition (there is some evidence that the doctrine was considered by the Roman Catholic Archdiocese of Philadelphia in the case in 1977 which I have already mentioned: see Thomasma and other, The Ethics of Caring for Conjoined Twins, Hastings Center Report July-August 1996, p.9). The term 'casuistry' has come to have bad connotations but the truth is that in law as in ethics it is often necessary to consider the facts of the particular case, including relevant intentions, in order to form a sound judgment.

I do not by that imply any criticism of the Archbishop's moderate and thoughtful submissions, which the court has anxiously considered. But ultimately the court has to decide this appeal by reference to legal principle, so far as it can be discerned, and not by reference to religious teaching or individual conscience.

34. Conclusions

In this case highly skilled and conscientious doctors believe that the best course, in the interests of both twins, is to undertake elective surgery in order to separate them and save Jodie. The surgery would not be intended to harm Mary but it would have the effect of ending her life, since her body cannot survive on its own (and there is no question of her life being prolonged by artificial means or by a heart-lung transplant). The doctors' opinion cannot be determinative of the legality of what is proposed - that responsibility has fallen on the court - but it is entitled to serious respect. In Gillick v West Norfolk and Wisbech AHA [1986] AC 112, 190 Lord Scarman (with whom Lord Fraser and Lord Bridge agreed) said (in relation to the supply of contraceptives to a girl under 16):

"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."

Here the court is concerned with the possibility of the commission of a much more serious criminal offence, that is murder. But in the wholly exceptional case of these conjoined twins I consider that the same principles apply. In Bland Sir Thomas Bingham MR (whose judgment was approved in the House of Lords by Lord Goff and a majority of their lordships) was prepared to put the matter very broadly ([1993] AC 789 at p.815):

"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."

In this case the doctors would perform a positive act of invasive surgery, but they would do so for the well-intentioned purposes which I have mentioned. The surgery would plainly be in Jodie's best interests, and in my judgment it would be in the best interests of Mary also, since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them. As Thomas J said in the Auckland case [1993] 1 NZLR 235, 245,

"Human dignity and personal privacy belong to every person, whether living or dying."

Much of this judgment has necessarily been rather technical, and I am conscious that some of it may seem rather remote from the deeply troubling dilemma which Jodie's and Mary's condition presents. Every member of the court has been deeply troubled by this case, but we have to decide it in accordance with the principles of existing law as we perceive them to apply to this unprecedented situation. I will summarize my conclusions as to the applicable principles as simply as I can.

(i) The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests.

(ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal must form its own view.

(iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian foundations) and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her.

(iv) But Jodie also has a right to life.

(v) Every human being's right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy - the right to have one's own body whole and intact and (on reaching an age of understanding) to take decisions about one's own body.

(vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them.

(vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.

(viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all.

(ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another.

(x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable.

I would therefore dismiss this appeal.

Lord Justice Brooke:

9.Introduction

If this appeal had been concerned only with difficult issues of family law, I would have been content if the judgment of Ward LJ, with which I agree, had been issued as a single judgment of the court. Although my heart goes out to the parents of Jodie and Mary in the cruel dilemma in which they find themselves, Parliament has directed us to consider the interests of the children to be paramount. The devout wishes of the children's parents must form an important factor in the balancing equation, but I am completely satisfied, for the reasons given by Ward LJ, that if what is now proposed is a lawful operation, the best interests of Jodie compel us to authorise that operation. It would give her a very good prospect of living a happy, fulfilled life, and provided that the operation is lawful we should not allow Jodie's interests to be overridden by Mary's interests where those interests are in conflict. I also entirely agree, for the reasons he gives, with Ward LJ's analysis of the situation from Mary's standpoint, and with the criticisms he makes of the judge's conclusions in this respect.

We have been told by an independent paediatric surgeon from the Great Ormond Street Hospital that surgery would probably be a low risk procedure for Jodie. He would expect her to have normal bowel control, although he cannot be absolutely certain about this. She voids normally, and he hopes that this will continue. She will need further operations to provide a functioning vagina, but in his experience the great majority of children achieve a functioning vagina after reconstruction. It seems that her gait will be normal, or near normal, although he cannot exclude the possibility of surgery should a curvature of the spine develop. Some of the media comment about this case has focussed on the extreme possibilities of untoward outcomes in relation to all these matters, in contrast to what we have been told is the likely outcome, not only by the Manchester team but also by the independent expert from Great Ormond Street, for whose assistance we are very grateful.

There is one aspect of the facts which I would mention in addition to the very full summary provided by Ward LJ. He has mentioned the pressures on Jodie's heart if the present situation continues for any significant length of time. The consultant paediatrician from Manchester mentioned two other threats which Mary posed to Jodie. The first was that persistent hypoxia in Mary might lead to the release of cytokines which would be capable of crossing over to Jodie's circulation. Such cytokines are known to be damaging to the brain and might lead to white matter damage, which in turn might lead to the development of irreversible cerebral palsy. Persistent hypoxia in Mary might also lead to the generation of thromboplastins which would enter Jodie's circulation and cause an abnormality in coagulation, causing a prolongation in clotting time and a tendency to bleed. In evidence, this witness added that chronic hypoxia over many days and weeks would promote cell destruction in Mary, and there was a possibility that it would have a similar effect on Jodie. The dangers posed to Jodie by Mary's continued attachment to her cannot simply be limited to the serious dangers posed to Jodie's heart.

Although I am in full agreement with Ward LJ on the family law issues in this appeal, I have been constrained to prepare a judgment of my own because of the exceptionally difficult issues of criminal law which this appeal has raised. In this judgment I am happy to adopt the description of the facts of this case which Ward LJ has set out. In order to understand more fully the issues we have to decide, I have also found it valuable to consider in some detail the effect of the medical and other literature which has been put before the court.

10.The medical literature

The birth of conjoined twins is a comparatively rare event. In 1975 one expert suggested that they constituted 1 in 50,000 live births. There has been a more recent estimate of 1 in 100,000. In 1986 another expert estimated that on the continent of Africa 1 in 14,000 births were of conjoined twins. 40-60% of these twins were stillborn, and a further 35% survived for only one day after birth.

Conjoined twins are always the product of a single fertilised egg, and they always have the same chromosomal composition and sex. It is believed that they result from an incomplete division of the inner cell mass about 15-16 days after the egg is fertilised, and about seven days after what is called monozygotic twinning is said to occur. The exact reason for the complex fusion which may result from such late cleavage is still unknown, and it takes a wide range of different forms. The incomplete division of the embryo appears to be associated with a process which inhibits the complete differentiation of the various organ systems. Conjoined twins with fused organs therefore usually enjoy incomplete development. This may be manifested for instance, in conjoined hearts or livers, or conjoined gastro-intestinal and genito-urinary tracts.

There are a few centres of medical and surgical excellence in different parts of the world which specialise in the care and, on very rare occasions, the separation of conjoined twins. The Great Ormond Street Children's Hospital in London has now established itself as one such centre. The Children's Hospital of Philadelphia is another, and we have been greatly assisted by being afforded the opportunity to read two papers written by Professor James O'Neill, formerly of the Department of Surgery at that hospital. The first, entitled "Surgical Experience with Thirteen Conjoined Twins", was a paper he presented to a specialist gathering in San Francisco in 1988. The other is his chapter on Conjoined Twins in the second volume of his textbook "Pediatric Surgery" (5th Edition), which was published much more recently. We also obtained much assistance from a 1989 article entitled "Twenty Three Year Follow-up of Separated Ischiopagus Tetrapus Conjoined Twins", by Dr Hoyle and Dr Thomas of the School of Medicine in the University of North Carolina. This article summarises the outcome of the 33 reported attempts at surgical separation of the type of conjoined twins with which we are concerned in this case. While the authors were engaged in preparing this summary, they conducted a survey of more than 600 publications in the medical literature concerned with the topic of conjoined twins.

Doctors give the name "ischiopagus conjoined twins" to twins of this type. The Greek derivation of the first part of this word means "pelvis", and the second part of the word means "fixed". In 1988 Professor O'Neill believed that ischiopagus twins constituted about 6% of the total number of conjoined twins. They are joined, as their name suggests, at the pelvis, and they often possess shared genito-urinary structures, recta and livers. They may possess a ruptured omphalocele - a hernia of abdominal organs through the umbilicus (navel) - and they usually have either three or four lower extremities. They can therefore be categorised as ischiopagus tetrapus (four legs), like the twins in this case, or ischiopagus tripus (three legs). Bipus (two legs) twins also feature in the literature. There may be substantial differences in the way in which the bones and organs of the bodies of ischiopagus conjoined twins develop in the womb.

Ward LJ has described the anatomical structures of these two children, and I need not repeat what he has said. One feature of these structures is that this is not one of those cases in which there would have to be any organ transplantation from Mary to Jodie as a part of any surgical separation. Apart from the organs they share (which would have to be divided) and their divided organs (which would have to be united) they each have a complete set of separate organs, although in Mary's case some of them (and in particular her heart, lungs and brain) are severely underdeveloped.

Because they may develop differently, there can be no single solution to the legal issues that arise from any proposal to separate twins joined at the pelvis, let alone all conjoined twins. About 75% of all conjoined twins are joined at the thorax or the navel. These very often have conjoined hearts, and surgical separation is regarded as likely to be hopeless in the vast majority of such cases. The next main category (pygopagus: 18%) are joined at the rear, at sacrum level, and a tiny minority (craniopagus: 1.5%) are joined at the head. There are also (heteropagus) children born with parasitic attachments that are attached as duplicates to any part of their bodies, or even within their bodies. We are not of course concerned in this case with any of these other types of conjointure, which form 94% of the total.

The general scene has been well described by Sally Sheldon and Stephen Wilkinson, of the law and philosophy departments of Keele University, in their recent article "Conjoined Twins: the Legality and Ethics of Sacrifice" (1997) 2 Med LR 149 at p 150:

"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."

We are concerned with the last of these three situations. The authors of the article are correct to add, and we cannot stress this point too strongly, that each situation will raise its own unique problems.

Although the Roman writer Pliny referred to a pair of conjoined twins nearly 2,000 years ago, and although the Maids of Biddenden, who were born in England in 1100 and survived into adult life, joined laterally from hips to shoulders, gained a reputation which has lasted to the present day, conjoined twins were not mentioned in a significant medical treatise until 1678, and the earliest recorded successful surgical separation was performed in 1689. It is a measure of the extreme rarity of the operation (at any rate until very recent times) that Professor O'Neill has said that only about 100 successful separations (featuring the survival of one or both twins) were reported in medical literature between 1689 and 1988. In the latest edition of his text book on paediatric surgery he raised that figure to 150, and in 1997 another review (conducted by N C Freeman and others) updated Dr Hoyle's figures and concluded that there were now 210 reports of surgical separation operations for conjoined twins reported in world medical literature.

Conjoined twins obtained international notoriety (and a name now universally used) in the nineteenth century when Eng and Chang Bunker, born in Siam in 1811, toured the world with P T Barnum's circus, living fertile and successful lives until their deaths, within three hours of each other, at the age of 63. Notwithstanding the obvious happiness of these two men, conjoined twins were described as "double-headed monsters" in medical literature well into the twentieth century. Very few of them, if born alive, survived for more than a few days, and a tiny handful grew up into adulthood. Separation was hardly ever attempted before about 1955.

As I have said, we are concerned in this case only with the surgical separation of twins joined at the pelvis. Hoyle and Thomas reported 33 such operations in the medical literature up till 1989 and listed them conveniently in a table. The later operations in this series, from about 1979 onwards, on the whole display more or less consistently successful outcomes, although the survivors were inevitably still very young when their article was written. On the other hand, of the 26 children involved in the 13 operations undertaken between 1955 and 1974 only 15 survived, and one of these died when only two years old.

More significantly for the purposes of the present case, in two of these early cases one of the twins is said to have been sacrificed. In one of these cases the sacrificed twin suffered from anencephaly (ie it lacked all or most of the cerebral hemispheres, but was capable of using its lungs). In the other case, the first in the series, the sacrificed twin was said to have been deformed and moribund. In that case the surviving twin was lost to follow-up at the age of ten, but at that time she was said to be doing quite well except for her short stature and abnormal gait due to the absence of a symphysis pubis.

We have also been shown a 1998 article, "Urological problems in conjoined twins", written by a senior registrar at Great Ormond Street Hospital in conjunction with others at that hospital. Between 1985 and 1995 seven sets of conjoined twins were surgically separated at Great Ormond Street. Urological problems were encountered in three of these sets of twins, all of whom were joined at the pelvis. They were also all joined at the navel, and two of them were joined at the breast bone as well. Their separation operations took place at the ages of 8 months, 10 months and three years respectively. One of these children died three days after her operation, probably secondary to cardiac insufficiency, and another died a year after separation from aspiration of a foreign body.

The pre-operative and post-operative conditions of all these children were different, and because they were either bipus or tripus twins, all the survivors now possess an artificial limb. One of them, at 8 years old, was said to have urinary control, with normal renal function. Of the second set, one twin was having problems with his renal function and bladder at the time of his death. The other was having very considerable problems with renal function, had no urinary control, and at the age of 4 was awaiting stone removal and further genital reconstruction. Pre-operatively those twins had possessed medial kidneys fused on the midline and displayed very complex problems in the genital region. Both twins in the pair who both survived (until the age of ten at least) were experiencing continuing difficulties of a urological nature. One of them was still incontinent of urine despite an injection into the neck of his bladder, while the other was fitted with suprapubic catheterization to control his bladder emptying functions. Other centres were said to have reported greater success in achieving urinary continence in such children following their separation.

Another article, "Experience with Uro-Genital Reconstruction of Ischiopagus Conjoined Twins", discussed the comparable experience of the Philadelphia Children's Hospital between 1957 and 1993. Their 20 surgical separations included six pairs of twins joined at the pelvis. Ten of them survived - one of the two deaths resulted from a cause unconnected with the surgery - but many of them experienced continuing urinary problems, or were awaiting further surgical intervention. The authors concluded that with careful observation and judicious intervention it was possible to maintain normal kidney function, provide bladder continence, and make normal sexual activity and fertility achievable goals, so that the individuals concerned might have satisfying well-adjusted lives.

Although more than 200 surgical separations have now been carried out, neither counsel nor the members of the court were able to discover any reported judgment of any court in any jurisdiction that has addressed the issues that are at the centre of the present appeal. It appears that in the United States of America proposals to separate conjoined twins may now be referred to hospitals' ethics committees, and not to a court, no doubt because of features of United States law that are different from English law.

We were shown, however, one article that contained a vivid description of a case in Philadelphia in 1977 in which a three-judge panel of a local Family Court retired for only three minutes before deciding that a surgical separation might go ahead. This was a case similar to ours, where the survival of both twins following separation was out of the question. It therefore raised the same ethical (and legal) question: could one twin be sacrificed so that the other might have a chance to live?

In that case the parents, who were deeply religious Jews, would not consent to the separation without rabbinical support. Many of the nurses at the hospital were Catholic, and they would not allow themselves to become involved in the proposed operation unless a priest assured them that it was morally acceptable to proceed. In the event, both the rabbinical scholars and the archdiocesan authorities gave favourable answers, for reasons to which I will refer later in this judgment. The court authorised the surgery, although sadly the surviving twin died three months later.

It is possible to draw two fairly clear conclusions from the medical literature before the court:

Although surgical separation of conjoined twins is still a very rare event, it is now being performed more frequently, and there is a substantial volume of writing available to assist medical and surgical teams, like the teams at Manchester, who are undertaking the operation for the first time;

The separation of twins joined at the pelvis is complicated by the incidence of shared (or divided) organs in the genito-urinary and gastro-intestinal regions. Such separations, however, are now being undertaken more frequently, with reasonably good results although there is always a need for careful post-operative monitoring and for further surgical intervention, if and when it is required.

11.The law of murder and the sanctity of human life

I turn from this general introduction to the issues of criminal law that have been raised by this appeal. As is apparent from the judgment of Ward LJ, issues of life and death are presented in the starkest terms. The operation to save Jodie would kill Mary. If the operation is not performed, both will probably live for a few more months and they will both then die. The question is: would such an operation be lawful?

To answer this question we must go first to the law of murder and the defences that are available to a charge of murder. An important part of this examination must be devoted to the defences that may be available to surgeons performing life-saving operations in accordance with good surgical practice. And because this operation, if permitted, is likely to take place after 2nd October 2000, when the Human Rights Act 1998 comes into force, we must also consider the effect of relevant provisions of the European Convention on Human Rights.

First, then, the law of murder. Murder is a common law offence. The classic definition of murder is contained in Coke's Institutes (Co Inst Pt III, Ch.7, p 47). It is in these terms:

"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....."

I omit the requirement, recently repealed by statute, that the death had to occur within a year and a day after the causative act or omission. The editors of the 2000 edition of Archbold have suitably modified this definition so that it conforms with the present state of the 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....."

None of the three exceptions are relevant in this case. They relate to the defences of provocation, diminished responsibility and action in pursuance of a suicide pact. These serve, if available, to reduce to manslaughter what would otherwise be an offence of murder.

The words or phrases in the Archbold definition which need to be explored in the present case are the words "unlawfully", "kills", "any reasonable creature" and "with intent to kill". It is first, however, necessary to say a little about the value protected by the law of murder, namely the sanctity of human life.

The right to life is one of the most important values protected by our law. The penalty for murder is a mandatory sentence of life imprisonment. Before 1957 the mandatory penalty for murder was death. When I consider, in due course, the circumstances in which the law is willing to recognise that an act which would otherwise constitute a crime was not unlawful, it will be evident that our common law judges, right up to the present day, have shown very great reluctance to extend those defences when an innocent life has been taken deliberately. As the law now stands, for example, duress is available as a defence to a charge of aircraft hi-jacking but not to a charge of murder or attempted murder. In recent years Parliament has greatly increased the penalties for certain driving offences that result in death. In exercising their sentencing discretion in cases of involuntary manslaughter, where death arises by accident from a quite trivial act of unlawful violence, the judges have always laid stress on the fact that a life has been needlessly lost. Successive Governments, and Parliaments, have set their face against euthanasia. I cannot better what Sir Thomas Bingham MR said about the sanctity of human life in his judgment in Airedale NHS Trust v Bland [1993] AC 789, 808, in the passage quoted by Robert Walker LJ in his judgment.

We received a written submission from the Archbishop of Westminster which began along these lines:

"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."

The first of the five "overarching moral considerations" which governed the Archbishop's submission was in these terms:

"Human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission".

As the Archbishop observed, the same sentiment is expressed (in secular terms) in Article 2 of the European Convention on Human Rights:

"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".

The Archbishop told us that he was articulating principles of morality which the Catholic Church held in common with countless others who value the Judaeo-Christian tradition.

There can, of course, be no doubt that our common law judges were steeped in the Judaeo-Christian tradition and in the moral principles identified by the Archbishop when they were developing our criminal law over the centuries up to the time when Parliament took over the task. There can also be no doubt that it was these principles, shared as they were by the other founder members of the Council of Europe 50 years ago, which underlay the formulation of Article 2 of the European Convention on Human Rights. Although parts of our criminal law, as enacted by Parliament, reflect a shift away from some of the tenets of Judaeo-Christian philosophy (in particular, for example, a shift away from the Catholic Church's teaching on abortion) in favour of the views of the majority of the elected representatives of an increasingly secular (and increasingly multi-cultural) modern state, there is no evidence that this process is at work in that part of our law concerned with the protection of human life between the moment of birth and the moment of death.

The emphasis that English law places on the importance of the protection of human life is also reflected in the caselaw of the European Court of Human Rights in Strasbourg. In McCann v United Kingdom A324 (1995), 21 EHRR 97, the case concerned with the shooting of suspected IRA terrorists in Gibraltar, the court said at para 147:

"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 ["No one shall be subjected to torture or to inhuman or degrading treatment or punishment"], it also enshrines one of the basic values of the democratic societies making up the Council of Europe..."

It is against this background that I turn to the four words or phrases whose meaning has to be explored in this case: "unlawfully", "kills", "any reasonable creature", "with intent to kill". I will consider first the words "any reasonable creature".

12.Is Mary a reasonable creature?

For the reasons given by Ward LJ and Robert Walker LJ, with which I agree, I am satisfied that Mary's life is a human life that falls to be protected by the law of murder. Although she has for all practical purposes a useless brain, a useless heart and useless lungs, she is alive, and it would in my judgment be an act of murder if someone deliberately acted so as to extinguish that life unless a justification or excuse could be shown which English law is willing to recognise.

In recent editions of Archbold, including the 2000 Edition, the editors have suggested that the word "reasonable" in Coke's definition (which they wrongly ascribe to Lord Hale in para 19.1) related to the appearance rather than the mental capacity of the victim and was apt to exclude "monstrous births". Spurred on by this suggestion, and because the present case broke so much novel ground, we explored with counsel some of the thinking of seventeenth century English philosophers in an effort to ascertain what Coke may have meant when he used the expression "any reasonable creature" as part of his definition. We had in mind their absorbing interest in the nature of "strange and deformed births" and "monstrous births" (see Thomas Hobbes, Elements of Law, II.10.8, and John Locke, An Essay Concerning Human Understanding, III.III.17, III.VI.15 and 26 and III.XI.20).

In Attorney-General's Reference (No.3 of 1994) [1998] AC 245 Lord Mustill referred at p 254F to another statement in Coke's Institutes, not mentioned in that passage in Archbold, where after referring to prenatal injuries which lead to the delivery of a dead child, Coke writes (Co Inst Pt III, Ch.7, p 50):

"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 natura, when it is born alive".

In these circumstances I have no hesitation in accepting the submission by Miss Davies QC (whose assistance, as the friend of the court, was of the greatest value), which was in these terms:

"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."

Modern English statute law has mitigated the prospective burden that might otherwise fall on the parents of severely handicapped children and their families if they are willing to avail themselves of its protection at any time up to the time the child (or children) is born. Section 1(1)(d) of the Abortion Act 1967, as substituted by Section 37(1) of the Human Fertilisation and Embryology Act 1990, provides:

"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".

Once a seriously handicapped child is born alive, the position changes, and it is as much entitled to the protection of the criminal law as any other human being. The governing principle is sometimes described as the universality of rights. In the Canadian case of Perka v The Queen 13 DLR (4th) 1 Wilson J said at p 31 that the principle of the universality of rights demands that all individuals whose actions are subjected to legal evaluation must be considered equal in standing.

It follows that unless there is some special exception to which we can have recourse, in the eyes of the law Mary's right to life must be accorded equal status with her sister Jodie's right to life. In this context it is wholly illegitimate to introduce considerations that relate to the quality, or the potential quality of, each sister's life.

13. The meaning of the word "kills"

I turn now to the word "kills" in the definition of murder. In the Tony Bland case (Airedale NHS Trust v Bland [1993] AC 789) the House of Lords was much exercised with the question whether the cessation of medical treatment and care to a patient who had been in a persistent vegetative state for three years constituted an intentional killing of that patient for the purposes of the law of murder. Lord Goff identified what he described as a crucial distinction in these terms at p 865:

"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."

In the Tony Bland case the House of Lords was satisfied that the cessation of life-prolonging treatment or care could not be categorised as a positive act for the purposes of the law of murder, and since on the facts of that case the doctors owed no duty to the patient to prolong his life (since that course, the House of Lords held, would not be in their patient's best interests), they could not be found guilty of a culpable omission to act, either.

It was this distinction between acts and omissions which the judge had in mind when he held that it would be lawful to perform the proposed operation. He explained his thinking in the long passage which Ward LJ has recited fully in his judgment. He believed, in short, that the proposed operation was not unlawful because it did not represented a positive act but merely the withdrawal of Mary's blood supply.

On the hearing of the appeal only Mr Whitfield QC sought to persuade us to uphold the judge's approach. I am satisfied that the judge's approach was wrong. The proposed operation would involve a number of invasions of Mary's body, in the process of identifying which organ belonged to which child, before the positive step was taken of clamping the aorta and bringing about Mary's death. These acts would bear no resemblance to the discontinuance of artificial feeding sanctioned by the House of Lords in the Tony Bland case. They would be positive acts, and they would directly cause Mary's death.

14.The intention to kill

Next, the words "intent to kill". There is a technical difficulty about one aspect of the meaning of "intention" in this context. It seems to me that the best way to describe it is to start with an extract from the Law Commission's 1993 report on Offences Against the Person and General Principles, Law Com. No 218 at pp 8-10:

"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."

 

In paragraph 7.2 of its report the Law Commission touched on some of the problems that existed in 1993 in this corner of the law. These problems were vividly described by Lord Steyn in his speech in the recent case of R v Woollin [1999] 1AC 82 at pp 90E-93F, with which the other members of the House of Lords agreed. Apart from mentioning at p 91A the "state of disarray" into which the House of Lords had plunged the law of murder in the case of R v Hyam [1975] AC 55, it is not necessary to go into any further detail about these problems. Suffice it to say that Lord Steyn restated the law along the lines suggested by the Law Commission six years earlier. The effect of his speech at p 96B-H is that in this rare type of case a judge should direct the jury in accordance with the following principles:

"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."

Now that the House of Lords has set out the law authoritatively in these terms, an English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end, because her death would be the virtually certain consequence of their acts, and they would realise that for all practical purposes her death would invariably follow the clamping of the common aorta.

15. The doctrine of double effect

We received interesting submissions from Mr Owen QC and Mr Whitfield in which they suggested that the doctrine of double effect would relieve the surgeons of criminal responsibility in these circumstances. This doctrine permits a doctor, in the best interests of his or her patient, to administer painkilling drugs in appropriate quantities for the purpose of relieving that patient's pain, even though the doctor knows that an incidental effect of the administration of these drugs will be to hasten the moment of death. In his speech in Airedale NHS Trust v Bland, Lord Goff, while describing the doctor's duty to act in the best interests of his patient, said at p 867C-E:

"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."

In re J [1991] Fam 33 Lord Donaldson MR identified the relevant principles in these terms at p 46C-D:

"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."

 

Mr Whitfield relied on these dicta in support of his argument that what matters in this context is the surgeon's "primary purpose" (a phrase used by Ognall J in summing up to the jury in R v Cox 12 BMLR 38), and that the fact that Mary's accelerated death would be a secondary effect of the surgeon's actions would not justify his conviction for murder. He also referred us to the passage at pp179-180 in an essay by Professor Ashworth, Criminal Liability in a Medical Context: the Treatment of Good Intentions, which is published in Harm and Culpability (edited by AP Simester and ATH Smith, Oxford, 1996). Mr Whitfield summarised Professor Ashworth's argument as follows:

(i) the true meaning of intention is purpose;

(ii) one may purpose ends or means;

(iii) one does not purpose a side-effect;

(iv) therefore a consequence, even if prohibited, is not intended if it is a side effect.

Mr Owen QC, for his part, referred us to a passage in the 2nd Edition of Medical Law, in which Professors Ian Kennedy and Grubb criticise the doctrine of double effect in so far as it is advanced as negating the necessary elements of intention or causation for the crime of murder, saying at p 1207:

"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 not necessary for the purpose of this case to decide authoritatively whether this is the correct analysis, answering as it does the anxieties about the manipulation of the law of causation expressed by Lord Mustill in Airedale NHS Trust v Bland [1993] AC 789 at pp 895D-896B. There are certainly some powerful dicta in support of a proposition that if a surgeon administers proper surgical treatment in the best interests of his or her patient and with the consent (except in an emergency) of the patient or his or her surrogate, there can be no question of a finding that the surgeon has a guilty mind in the eyes of the criminal law: see in particular Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, per Lord Fraser of Tullybelton at pp 174G-175A and Lord Scarman at p 190F-G. The reason why it is not necessary to decide these matters now is that the doctrine of double effect can have no possible application in this case, as the judge rightly observed, because by no stretch of the imagination could it be said that the surgeons would be acting in good faith in Mary's best interests when they prepared an operation which would benefit Jodie but kill Mary.

In this context it is relevant to quote the second and third overarching moral considerations identified by the Archbishop of Westminster in his written submission:-

"(b) A person's bodily integrity should not be involved when the consequences of so doing are of no benefit to that person; this is most particularly the case if the consequences are foreseeably lethal.

(c) Though the duty to preserve life is a serious duty, no such duty exists when the only available means of preserving life involves a grave injustice. In this case, if what is envisaged is the killing of, or a deliberate lethal assault on, one of the twins, Mary, in order to save the other, Jodie, there is a grave injustice involved. The good end would not justify the means. It would set a very dangerous precedent to enshrine in English case law that it was ever lawful to kill, or to commit a deliberate lethal assault on, an innocent person that good may come of it, even to preserve the life of another".

It is of interest to note in this context that when the Catholic nurses at the Children's Hospital in Philadelphia consulted their archdiocesan authorities in a similar case in 1977 (with the sole distinguishing factor that the parents of the "sacrificed" child were willing to consent to the operation once they had received favourable rabbinical advice) the comfort they received was based on the double effect doctrine. It was argued that the tying of the carotid artery was done not to terminate the life of the sacrificed twin but to preserve the life of the other twin by protecting it from the poisons that would built up in the sacrificed twin's blood after its death: see Siamese Twins: Killing One to Save the Other, by George J Annas (Hastings Center Report, April 1987, 27 at p 28) and The Ethics of Caring for Conjoined Twins, by David C Thomasma and others (Hastings Center Report, July-August 1996, 4 at p 9). I do not consider that this method of applying the doctrine of double effect would have any prospect of acceptance in an English court.

It follows from this analysis that the proposed operation would involve the murder of Mary unless some way can be found of determining that what was being proposed would not be unlawful. This, the fourth and final part of the investigation, is far the most difficult. It is worth noting at the outset that Miss Davies supported the contentions of Mr Whitfield and Mr Owen to the effect that what was proposed would not be unlawful. They were opposed by Mr Taylor (for the parents) and Mr Harris QC (instructed by the Official Solicitor on behalf of Mary). At the close of his final submissions on behalf of Mary, however, Mr Harris, acting on the Official Solicitor's express instructions, took us back to the final page of his original written argument to this court, which had ended in these terms:

"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."

This explicit encouragement by the Official Solicitor that we should explore the possibility of developing the law so as to enable such surgery to be undertaken lawfully was not at all unwelcome. We pointed out repeatedly to Mr Taylor and Mr Harris during the course of argument that if their contentions were correct, no separation surgery which would inevitably involve the sacrifice of one conjoined twin could ever lawfully take place, however ardently their parents wished one of their children to survive, and however severely compromised the condition of the other twin. It would also follow, if their arguments based on the effect of Article 2 of the European Convention on Human Rights (bolstered on this occasion by the written arguments of Mr David Anderson QC on behalf of the Pro-Life Alliance) are well-founded, that no separation surgery involving the sacrifice of a conjoined twin could take place in any of the member states of the Council of Europe. Mr Taylor and Mr Harris accepted, realistically, that this was indeed the effect of their submissions.

16. The doctrine of necessity

We received some interesting and powerful submissions about the doctrine of necessity, and the ways in which it might be called in aid to justify the operation proposed by the doctors. Although for many years cases involving pleas of necessity were notable for their absence from our caselaw, the doctrine has recently been given a new lease of life by Lord Goff of Chieveley, first in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and more recently, in a speech with which the other members of the House of Lords agreed, in R v Bournewood Community and Mental Health NHS Trust ex parte L [1999] 1 AC 458.

This doctrine is so obscure, and it has featured so seldom in our caselaw in the criminal courts, that I must describe it in considerable detail, and identify the problems it throws up, before I go on to decide whether it is permissible to apply it to the facts of the present case.

In In re F Lord Goff said at p 74A-C in the context of the law of tort:

"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."

Lord Goff then went on to consider a third group of cases, also founded upon the principle of necessity, which were concerned with actions taken by someone as a matter of necessity to assist another person without his consent. We are not, however, concerned in the present case with this application of the doctrine, because the law confers on the parents of an infant child the authority to consent on her behalf, and because there is also the residual right of consent vested in the court.

In the Bournewood case Lord Goff had recourse to this doctrine again when holding that doctors were entitled to rely on it as the basis for their authority to care for compliant incapacitated patients of adult years and treat them without their consent. At the end of his speech in that case, he mentioned some old cases which authorised (in so far as this was shown to be necessary) the detention of those who were a danger, or potential danger, to themselves or others. He added (at p 490 C-D):

"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".

17. Public and private necessity in the criminal law

In the present case we are concerned with what is said by some of those who appeared before us to be a case of private necessity in the eyes of the criminal law. Bracton, writing in the thirteenth century On the Laws and Customs of England (Selden Society Edition 1968, at Vol 2, 340-341) identified this type of necessity, in the context of the law of homicide, in these terms:

"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."

Five hundred years later the same concept of necessity, which still forms part of our law today, was expressed as follows by Lord Hale in his Pleas of the Crown Vol I, 51:

"....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."

Later in the same volume Hale identifies two kinds of necessity which justify homicide: necessity which is of a private nature, and the necessity which relates to the public justice and safety (with which we are not here concerned). He added (at p 478):

"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."

Blackstone, in Volume IV of his Commentaries on the Laws of England, had recourse to the law of nature as the source of a person's authority to use proportionate force in self-defence, saying at p 30:

"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."

During the seventeenth century there were suggestions that the right of self-preservation extended beyond the right to use appropriate force in self-defence. Thus in his Elements of the Common Laws of England (1630) Lord Bacon wrote:-

"Necessity is of three sorts – necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of causation of life; if a man steal viands to satisfy his present hunger this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable".

Similar sentiments appear in Thomas Hobbes's Leviathan at p 157:

"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."

Both these extensions of the doctrine of necessity have been authoritatively disapproved as propositions of English law. For the disapproval of the idea that in order to save himself a man is entitled to deprive another of the place of safety he has already secured for himself, see R v Dudley and Stephens (1884) 14 QBD 273 per Lord Coleridge CJ at pp 285-6 ("if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day") and R v Howe [1987] 1 AC 417 per Lord Hailsham of St Marylebone LC at p 431E, to similar effect. For the equally strong disapproval of the idea that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft, see Southwark LBC v Williams [1971] 1 Ch 734 per Lord Denning MR at pp 743H-D and Edmund-Davies LJ at pp 745E-746C. See also on these topics Hale's Pleas of the Crown Volume I, 51 and 54 and Blackstone's Commentaries, Volume IV, pp 30 and 31-32.

18.Nineteenth century attempts at codifying the doctrine of necessity

Nineteenth century Governments appointed commissions from time to time with the laudable purpose of consolidating or codifying our criminal law. Inevitably, these commissions addressed issues related to the existence and scope of the doctrine of necessity. It is not at all surprising that they found them difficult to handle.

For example in 1839 the Commissioners on Criminal Law wrote (see Fourth Report of HM Commissioners on Criminal Law, Parliamentary Papers XIX) at p xxi:

"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."

In 1846, in the Second Report of HM Commissioners for Revising and Consolidating the Criminal Law ((1846) Parliamentary Papers), the Commissioners dealt with self-defence as a potential justification for homicide in Article 16 of their Draft Code, but they decided on policy grounds not to provide a more general defence of necessity. In a footnote to Article 19 they wrote:

"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'."

When the Criminal Code Bill Commissioners took up the challenge in 1879 they were equally baffled by definitional difficulties, although they were readier to leave open the possibility of establishing a lawful justification based on necessity. They said:

"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."

Sir James Stephen was one of these Commissioners, and his initial views on this elusive topic are to be seen in the second volume of his History of the Criminal Law of England, at pp 108-110. He began his discussion of the subject at p 108:

"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."

After referring to the dilemmas created by cases where a boat will sink unless it is relieved of one or more of its passengers, he found some comfort in the judgment of Lord Mansfield in R v Stratton (21 St Tr 1224), from which he derived the proposition that it was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. He went on to say (at pp 109-110):

"...[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".

He ended by saying that these considerations applied also to the case of a choice of evils. One of the two examples he gave in this context was of a ship so situated that the only possible way of avoiding a collision with another ship (which would probably sink one of both of them) involved running down a small boat.

19. The Queen against Dudley and Stephens

This was the legal background against which the case of R v Dudley and Stephens (1884) 14 QBD 273 was set. In AWB Simpson's Cannibalism and the Common Law (1984) the author described how the three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884, a year after Stephen's History of the Criminal Law of England was published. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship's boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). As part of the historical background of the case Mr Simpson describes in Chapter 5 of his book (gruesomely entitled "The Customs of the Sea") a large number of similar instances in the nineteenth century of shipwrecks leading to cannibalism, some of which were described by Samuel Plimsoll in 1875 in a parliamentary debate.

The law report shows how a jury at the Devon and Cornwall Assizes had found the facts of the case in a special verdict. The case was then ordered to be argued in London before a court of five judges. In giving the judgment of the court Lord Coleridge CJ considered earlier writings (including the judgment of a circuit court in Pennsylvania in United States v Holmes 26 Fed Cas 360 (1842)) about necessity being a possible justification for homicide before he concluded that the facts stated in the jury's verdict provided no legal justification for the homicide in the present case. His reasoning can be seen in two passages towards the end of his judgment (at pp 286-288):

"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....."

"It is not needful to point out the awful danger of admitting the principle which has been contended for. 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? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be 'No' –

'So spake the Fiend, and with necessity,

The tyrant's plea, excused his devilish deeds.'

It is not suggested that in this particular case the deeds were 'devilish', but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment: and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it."

Sir James Stephen was not a member of the court, although he authorised Lord Coleridge to say that the language he had used about necessity in his History of the Criminal Law of England was not meant to cover a case like this. Three years later, in his Digest of the Criminal Law (1887), Stephen attempted a description of the doctrine of necessity in these terms at pp 9-11:

"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."

It is not necessary for present purposes to refer to the detail of the long footnote in which he commented, not always favourably, on the judgment of the court in R. v Dudley and Stephens.

That case has sometimes been taken as authority for the proposition that necessity can never under any circumstances provide a legal justification for murder. While it is true that a passage in the speech of Lord Hailsham in R v Howe [1987] 1 AC 417 at p 429C-D might be interpreted to this effect, in my judgment neither that passage nor a similar passage in Lord Mackay of Clashfern's speech at p 453 C-D displays any evidence that they had in mind a situation in which a court was invited to sanction a defence (or justification) of necessity on facts comparable to those with which we are confronted in the present case. I accept Miss Davies's submission that R. v Dudley and Stephens, endorsed though it was by the House of Lords in R. v Howe, is not conclusive of the matter.

20. Necessity: the recent studies by the Law Commission

We have also been shown how the Law Commission tackled this troublesome doctrine in the criminal law between 1974 and 1993. In 1974 a very experienced Working Party was brave enough to recommend codified proposals for a general defence of necessity (Law Commission Working Paper No 55 pp 38-9). Three years later the Commission itself retreated so far from this proposition that it recommended that there should be no general defence of necessity in any new Code, and that if any such general defence existed at common law it should be abolished (Law Com No 83 (1977), p 54). It felt that it would be much better if Parliament continued to create special defences of necessity, when appropriate. Because euthanasia was so controversial, and because the Criminal Law Revision Committee was engaged in work on offences against the person, the Commission thought it better to leave to that committee any questions relating to the provision of a defence in that area of the law.

This retreat, influenced by the responses it had received on consultation, particularly from practitioners (see pp 24-25), evoked a storm of protest from academic commentators (see, for instance, the articles entitled "Necessity" by Glanville Williams [1978] Crim LR 12 and "Proposals and Counter Proposals on the Defence of Necessity" by P.H.J Huxley [1978] Crim LR 141, and the powerful criticism (to the effect that the proposals represented "the apotheosis of absurdity") by Sir Rupert Cross in a Canadian university law journal cited by Professor Glanville Williams in a footnote on page 202 of the Second Edition of his Textbook on Criminal Law (1983).

Professor Williams returned to the topic of necessity in Chapter 26 of that book. He observed at p 602 that the main difficulty felt by the Law Commission appeared to have been in respect of certain "human rights", whereas the doctrine of necessity was an expression of the philosophy of utilitarianism. He referred, however, to a suggestion by an American writer, Paul Robinson, to the effect that the recognition of important values did not entirely exclude a defence of necessity. In the determination of cases where those values did not appear, their existence could not affect the outcome, and even where they did appear, they could be given special weight in estimating the balance of interests.

In his powerful Section 26.3 ("Necessity as a reason for killing") Professor Williams addressed the issues with which we are confronted in this case. He began his treatment of the subject by saying that many people believed in the sanctity of life, and consequently believed that killing was absolutely wrong. It was for this reason, he said, that the defence of necessity, if allowed at all, was given very narrow scope in this area. He distinguished private defence from necessity (although the two overlapped) on the grounds that (unlike necessity) private defence involved no balancing of values, while on the other hand private defence operated only against aggressors (who, with rare exceptions, were wrongdoers) whereas the persons against whom action was taken by necessity might not be aggressors or wrongdoers. In this context, he mentioned R v Bourne [1939] 1 KB 687 (where Macnaghten J had suggested in his summing up that there might be a duty in certain circumstances to abort an unborn child to save the life of the mother), as an example of the defence of necessity, even though it was a case not of homicide but of feticide.

Professor Williams came to the heart of the matter at p 604:

"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."

Between 1985 and 1993 the Law Commission returned to the topic of necessity on three separate occasions. In 1985 it published a report prepared by three professors of criminal law, who included Professor John Smith, on The Codification of the Criminal Law (1985 Law Com No. 143). Their recommendation (at para 13.26) was in these terms:-

"Necessity is not a topic to which we can apply our normal procedure of restatement, for which the present law does not provide suitable material. We cannot ourselves conduct a law reform exercise and propose a general defence of necessity of our own devising. And, as indicated above, we cannot support the Law Commission's totally negative proposals. In these circumstances our main proposal is that necessity should remain a matter of common law. That is, to the extent that the defence is now recognised, it should be unaffected by the Criminal Code Act; and (probably more important, because the present status of the defence is so limited and uncertain) the courts should retain the power that they now have to develop or clarify the defence. Necessity, that is to say, would fall within the general saving for common law defences declared by clause 49. Our only specific necessity provision is clause 46, which admits a defence in circumstances so closely analogous to those of the duress defence that it might indeed be 'the apotheosis of absurdity' to admit the one and to deny the other. The kind of situation catered for by clause 46 has, indeed, sometimes been called 'duress of circumstances'."

In 1989 the Law Commission itself accepted this recommendation without taking the matter any further (see A Criminal Code for England and Wales (1989 Law Com. No 177, Volume I, Draft Criminal Code Bill clauses 4(4) and 45(c), and the commentary in Volume II, para 12.41(ii)). Following further consultation the Law Commission maintained this approach in its report on Offences Against the Person and General Principles (1993 Law Com No 218). After discussing the defence of duress by threats, the Commission said at para 35.5 of this report:

"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."

The Commission went on to mention Lord Goff's speech in In re F (Mental Patient: Sterilisation [1990] 2 AC 1) where he had relied on the doctrine of agency of necessity as providing a legal justification for the sterilisation of a mentally incapable adult without her consent. It added (para 35.6):

"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."

It will be seen that the Law Commission envisaged that in exceptional circumstances a comparison might have to be made, perhaps as a matter of careful professional judgment and not in the throes of a life or death emergency, between the harm that otherwise unlawful conduct has caused (or would cause, if performed) and the harm that that conduct has avoided (or would avoid).

21. Necessity: modern academic writers

Those who prepared that report would have been familiar with a modern update of the "two men on a plank" dilemma (which dates back to Cicero, de Officiis) and the "two mountaineers on a rope" dilemma which was mentioned by Professor John Smith in his 1989 Hamlyn Lectures (published under the title "Justification and Excuse on the Criminal Law"). At the coroner's inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.

In his third lecture, "Necessity and Duress", Professor Smith evinced the belief at pp 77-78 that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there. The second was that unlike the ship's boy on the Mignonette, the young man, although in no way at fault, was preventing others from going where they had a right, and a most urgent need, to go, and was thereby unwittingly imperilling their lives.

I would add that the same considerations would apply if a pilotless aircraft, out of control and running out of fuel, was heading for a densely populated town. Those inside the aircraft were in any event "destined to die". There would be no question of human choice in selecting the candidates for death, and if their inevitable deaths were accelerated by the plane being brought down on waste ground, the lives of countless other innocent people in the town they were approaching would be saved.

It was an argument along these lines that led the rabbinical scholars involved in the 1977 case of conjoined twins to advise the worried parents that the sacrifice of one of their children in order to save the other could be morally justified. George J Annas, "Siamese Twins: Killing One to Save the Other" (Hastings Center Report, April 1987 at p 27, described how they:

"... 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".

There is, however, no indication in the submission we received from the Archbishop of Westminster that such a solution was acceptable as part of the philosophy he espoused. The judge's dilemma in a case where he or she is confronted by a choice between conflicting philosophies was thoughtfully discussed by Simon Gardner in his article "Necessity's Newest Inventions" (Oxford Journal of Legal Studies Vol II, 125-135). He explored the possibility of rights-based justifications based on a principle that otherwise unlawful actions might be justified where the infraction was calculated to vindicate a right superior to the interest protected by the rule, but he was perplexed by the idea that judges in a democracy could make their own decisions as to what was right and what was wrong in the face of established law prohibiting the conduct in question. The whole article requires careful study, but its author concluded that in jurisdictions where rights were guaranteed, the judicial vindication of a guaranteed right would be seen as protecting democracy rather than contravening it. This consideration does not, however, assist us in a case where there are conflicting rights of apparently equal status and conflicting philosophies as to the priority, if any, to be given to either.

Before I leave the treatment afforded to the topic of necessity by modern academic writers of great distinction (there is a valuable contemporary summary of the issues in the Ninth Edition of Smith and Hogan's Criminal Law (1999) at pp 245-252), I must mention the section entitled "Justifications, Necessity and the Choice of Evils" in the Third Edition (1999) of "Principles of Criminal Law" by Professor Andrew Ashworth. After referring to the facts of the Zeebrugge incident he said at pp 153-4:

"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."

22. Necessity: the work of Parliament

I turn now from twentieth century academic writing and the work of the Law Commission and its specialist working parties to consider the way in which Parliament and the courts have addressed these issues.

So far as I am aware, Parliament has never even debated these issues in a general sense, in spite of the recommendations of the Law Commission and the increasingly insistent pleas for Parliamentary assistance which have been made by senior judges in the context of the rapidly developing new defence of "duress of circumstances". Parliament has, however, to an increasing extent included "necessity" defences or justifications in modern offence-creating statutes, and where such provisions are present the Parliamentary intention is clear. In 1974 the Law Commission's Working Party identified such provisions in the Infant Life Preservation Act 1929 s 1(1), the Education Act 1944 s 39(2)(a), the Fire Services Act 1947 s 30(1), the Road Traffic (Regulation) Act 1967 s 79, the Abortion Act 1967 s 1(1) and the Road Traffic Act 1972 s 36(3). The Criminal Damage Act 1971 s 5(2)(b) provides another example from that period, and this statutory process has continued up to the present day, although, as is common with piecemeal law reform, the defences are not always framed along the same lines.

The Abortion Act provides a particularly good example of this process at work, expanding and clarifying the law for the benefit of the courts and for everyone else who, for whatever reason, needs to have recourse to the law in this controversial area. Before its enactment Macnaghten J in the case of R. v Bourne derived a "necessity" defence out of the word "unlawfully" in Section 58 of the Offences against the Person Act 1861 ("Any person who unlawfully uses an instrument with intent to procure a miscarriage shall be guilty of felony"). Macnaghten J said at p 691 that he thought that the word "unlawfully" imported the meaning expressed by the proviso in Section 1(1) of the Infant Life Preservation Act 1929 ("Provided that no person shall be guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother"). He went on to direct the jury at p 693:

"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".

That, as I have observed earlier, was the common law defence of necessity at work when a judge was interpreting what he believed Parliament must have meant when it used the word "unlawfully" in a codifying statute. Parliament's current intentions in this field are now clearly set out in the substituted Section 1(1) of the Abortion Act 1967. It would of course be very helpful, once Parliament has had the opportunity of considering the implications of the judgments in the present case, if it would provide similar assistance to the courts and to all other interested parties (and in particular parents and medical practitioners) as to what is legally permissible and what is not legally permissible in the context of separation surgery on conjoined twins. Parliament would of course now have to take account of the relevant provisions of the European Convention of Human Rights when formulating any new legislation.

23. Necessity: the courts and the defence of duress of circumstances

In addition to the major work that has been undertaken by Parliament in creating statutory excuses or justifications for what would otherwise be unlawful, the courts have also been busy in this field, at all events in those cases where a defendant maintains that he/she was irresistibly constrained by threats or external circumstances to do what he/she did.

So far as duress by threats is concerned, it was common ground between counsel that the solution to the present case is not to be found in the caselaw on that topic which Lord Hailsham has described as "that species of the genus of necessity which is caused by wrongful threats" (see R v Howe [1987] 1 AC 417, 429C). After no fewer than three split 3-2 decisions the House of Lords and the Privy Council have now both ruled that "duress by threats" is not available as a defence to murder (Howe) or attempted murder (R. v Gotts [1992] 2 AC 412): see also, in this series DPP for Northern Ireland v Lynch [1975] AC 653 and Abbott v The Queen [1977] AC 755.

The work of academic writers and of the Law Commission has, however, led to one significant development in the common law. This lies in the newly identified defence of "duress of circumstances". The modern development of this defence began in the field of driving offences.

In R v Kitson [1955] 39 Cr App R 66 the defendant, who had had a lot to drink, went to sleep in the passenger seat of a car driven by his brother-in-law. When later charged with driving car under the influence of drink, he said in his defence that when he woke up, he found that the driving seat was empty, and the car was moving down a hill with the hand brake off. He managed to steer the car into a grass verge at the bottom of the hill. He was convicted of driving a car under the influence of drink, and when the Court of Criminal Appeal dismissed his appeal on the basis that the ingredients of the offence were made out, and he had undoubtedly been driving the car within the meaning of the Act, nobody suggested that he was entitled to rely on a defence of necessity or duress of circumstances.

Thirty years later, this potential line of defence first saw the light of day in R v Willer (1986) 83 Cr App R 225. The defendant had been convicted of reckless driving (for which he was given an absolute discharge, although his licence was endorsed with ten penalty points) because he had been seen driving his car quite slowly on the pavement in front of a shopping precinct. He wished to defend the case on the basis that this had seemed to him to be the only way in which he could escape from a gang of 20-30 youths who had already banged on his car and threatened to kill him, and were now bent on doing him further violence. The assistant recorder, however, ruled that a defence of necessity was not available to him on those facts. On his appeal Watkins LJ said that the court doubted whether the defence of necessity was in point, but the court held that the jury ought to have been left to decide whether "the appellant was wholly driven by force of circumstances into doing what he did, and did not drive the car otherwise than under that form of compulsion, i.e. under duress".

A similar issue arose in R v Conway [1989] QB 290, another case of reckless driving. The defendant said that the reason why he had driven recklessly was that he was in fear for his life and that of his passenger. Woolf LJ said at pp 296-7 that the court found itself bound by the decision in Willer to rule that a defence of duress was available. He added that it was convenient to refer to this type of duress as "duress of circumstances" (being the expression adopted by the Law Commission's Criminal Code Working Party four years earlier: see 1985 Law Com No 143, para 13.26). He said that the defence would be available where the defendant was constrained by circumstances to drive as he did in order to avoid death or serious bodily harm to himself or some other person. He added that whether "duress of circumstances" was called "duress" or "necessity" did not matter. What was important was that whatever it was called, it was subject to the same limitations as the "do this or else" species of duress.

In R v Martin [1989] 1 All ER 652 Simon Brown J gave the judgment of the Court of Appeal (which included Lord Lane CJ) in a case where the defendant had wished to advance a defence to the effect that the only reason why he had driven while disqualified was that he had felt constrained to drive his stepson to work because his stepson had overslept. His case was that his wife (who had suicidal tendencies) had been threatening suicide unless he drove the boy to work, since she was so worried that her son might lose his job. Simon Brown J, relying on the earlier decisions in Willer and Conway, said that a defence was available to the defendant (however sceptically one might regard its prospects of success) and that he ought to have been allowed to place it before a jury. He added at pp 653g-654a:

"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."

In the course of the last eleven years, the scope of this defence has been broadened. In R v Pommell [1995] 2 Cr App R 607 the Court of Appeal ruled that it was available to a defendant convicted of possessing a loaded sub-machine gun who had wished to advance a defence to the effect that on the previous evening he had taken it "off a geezer who was going to do some damage with it". Kennedy LJ, giving the judgment of the court, said at pp 613E-614D:

"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". The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions."

However, that does not really deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accept as being a greater evil with a gun. In that situation it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth, and even if he is vindicated and given an absolute discharge, he is left with a criminal conviction which, for some purposes, would be recognised as such."

This reasoning is strikingly different from the reasoning in the context of a murder charge which led Lord Simon of Glaisdale (then in a minority) in DPP for Northern Ireland v Lynch [1975] AC 653 at p 687C-G and Lord Hailsham of St Marylebone in R v Howe [1987] 1 AC 417 at p 433C-G to hold that the availability of administrative as distinct from purely judicial remedies (the discretion not to prosecute, the Royal prerogative, the role of the Parole Board, etc) were strong enough techniques to "mitigate the hardships which might otherwise occur in the most agonising cases" (see Lord Hailsham in R v Howe at p 433D) if duress was not available as a defence to murder.

In R v Abdul-Hussain (CAT 17th December 1998: see [1999] Crim. LR 570) the Court of Appeal held that the defence of duress (whether by threats or from circumstances) was generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason. Rose LJ, speaking with the authority of the Vice-President of the Criminal Division of the Court of Appeal, said that this was now the fourth occasion in five years on which the court wished to emphasise the urgent need for legislation to define duress with precision.

In that case all the appellants except one (whose appeal was dismissed) had wished to put forward a defence to the effect that the reason why they had hijacked a Sudanese airbus on a flight from Khartoum to Amman and had forced it to fly to Stanstead Airport in England was that they were terrified that the Sudanese authorities might deport them to Iraq where they faced the prospects of imprisonment in conditions of extreme hardship, torture and summary execution.

Rose LJ said that the judgment of Simon Brown J in Martin afforded the clearest and most authoritative guide to the relevant principles in relation to both forms of duress. He also gave further guidance on the law as it now stands. In particular, he said that the imminent peril of death or serious injury to the defendant (or those for whom the defendant has responsibility) was an essential feature of both forms of duress, and that this peril must operate in the mind of the defendant at the time when he commits the otherwise criminal act (so as to overbear his will). The execution of the threat need not, however, be immediately in prospect. He added (see [1999] Crim LR 570) that

"the period of time which elapsed between the inception of the peril and the defendant's act was a relevant but not determinative factor; [and] that all the circumstances of the peril, including the number, identity and status of those creating it, and the opportunities (if any) to avoid it were relevant ...... when assessing whether the defendant's mind was affected so as to overbear his will".

In his judgment Rose LJ described how in the course of that hijacking an air hostess was seized and threatened with a plastic knife, an imitation grenade was produced (accompanied by a threat to blow up the plane), a knife was held for a very long time to the captain's back, passengers believed to be security officials were tied up, and one of the defendants pretended to instruct the others to blow up the plane if there was any movement on board. The defendants had declined to release the women and children at Larnaca, in Cyprus, where the plane stopped to refuel. The atmosphere on board was said to have been very tense.

I mention these facts to show that the Court of Appeal is now willing to entertain the possibility of a defence of duress even in a case as extreme as this if it is arguable that "the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged defence was no longer [his] voluntary act" (see R v Hudson [1971] 2 QB 202 per Lord Parker CJ at p 206E). The defence is available on the basis that if it is established, the relevant actors have in effect been compelled to act as they did by the pressure of the threats or other circumstances of imminent peril to which they were subject, and it was the impact of that pressure on their freedom to choose their course of action that suffices to excuse them from criminal liability.

I have described how in modern times Parliament has sometimes provided "necessity" defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity. They do not, however, cover exactly the same ground. In cases of pure necessity the actor's mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified.

24.Necessity: a Canadian perspective

In his judgment in R v Pommell Kennedy LJ cited an extract from the judgment of Dickson J, with which three other members of the Canadian Supreme Court agreed, in Perka v The Queen 13 DLR (4th) 1. In that case a ship bound on a voyage between Columbia and Alaska was driven by mechanical breakdowns and deteriorating weather to seek refuge on the west coast of Vancouver Island. Canadian police officers boarded the ship and seized over 33 tons of cannabis marijuana, which would not have come within the jurisdiction of the Canadian courts but for the emergencies which forced the ship to seek shelter in Canadian waters.

It was not in issue in that case that necessity was a common law defence, since it was expressly preserved by section 7(3) of the Canadian Criminal Code. What was in issue was whether it was available to the defendants on the facts. Dickson J held that although the residual defence of necessity could not be conceptualised as a justification for wrong-doing, it might properly be identified as an excuse where someone does a wrongful act under pressure which, in the words of Aristotle's Nichomachean Ethics, "overstrains human nature and which no one could withstand". He was therefore concerned with that type of necessity which in modern English law would be characterised as "duress of circumstances".

In her judgment Wilson J cavilled at Dickson J's conclusion that the appropriate jurisdictional basis on which to premise the defence of necessity was exclusively that of excuse. She was firmly of the view that a door should be left open, in an appropriate case, for justification to be adopted as the jurisdictional basis of the defence. She said that an act might be said to be justified where an essential element of the offence was absent, whereas an act might be excused if all the elements of the offence were present but the jury was requested to exercise compassion for the accused's predicament in its evaluation of his claim that "I could not help myself". In making this distinction Wilson J drew on the recent writings of Professor GR Fletcher ("The Individualisation of Excusing Conditions" 47 SO Cal.L.R. 1264 at p 1269 (1974)). She referred to some American cases as illustrations of situations where someone's criminally wrongful act was treated as "normatively involuntary", and therefore blameless, in the particular circumstances in which he or she was situated.

She could see no reason why a court should not regard an act as justified on the grounds of necessity if it could say that the act was not only a necessary one but that it was also rightful rather than wrongful. She did not think that the fact that one act was done out of a sense of immediacy or urgency and another after some contemplation could serve to distinguish its quality in terms or right or wrong. Instead, she considered that any justification of a wrongful act must be premised on the need to fulfil a legal duty which was in conflict with the duty which the accused was charged with having breached. She gave two Canadian cases as examples. In R v Walker (1973) 48 CCC (2d) 126, it was held to be legitimate to break the law where it had been necessary to rescue someone to whom one owed a positive duty of rescue (because failure to act in such a situation might itself constitute a culpable act or omission: see R v Instan [1893] 1 QB 450). In Morgentaler v The Queen [1976] 1 SCR 616 Laskin CJC (taking forward the thinking of Macnaghten J in R v Bourne) perceived a doctor's defence to an abortion charge as his legal duty to treat the mother rather than his alleged ethical duty to perform as unauthorised abortion.

At p 36 Wilson J said:

"....[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."

She made it reasonably clear, however, that she could not conceive of any circumstances in which this application of the doctrine of necessity could be extended to provide justification of an act of homicide. Her recourse to the principle of the universality of rights showed that she envisaged that everyone was of equal standing in relation to their right to life. For this reason she went on to say at p 36:

"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."

I found this a valuable way of forcing us to think more clearly about the reasons why it is ever permissible to admit a defence drawn from what Lord Hailsham would describe as the genus of necessity as a means of establishing that a defendant is not in law guilty of a crime even though the requirements of mens rea (a guilty mind) and actus reus (a guilty act) appear to be satisfied. In the last resort, however, it does not provide the solutions we are seeking in the present case for three reasons. The first reason is that English criminal law does not make any clear-cut distinction between a justification and an excuse. As Professor John Smith said at p 12 of his first Hamlyn lecture in 1989,

"Whether the act is one which society wants to be done, or merely tolerates, is a question which is not easy to answer if society has not expressed its wishes in the form of legislation or judicial decision. Not unnaturally there is a disagreement between the theorists. So far as the successful defendant is concerned, it matters not in the least whether the court, or anyone else, says that he is justified or merely excused; he is simply found not guilty in either event."

Secondly, as he points out at p 18 of that lecture, the distinction between those who save others out of a legal duty and those who do the same act for reasons which cannot be so characterised is not always very easy to sustain. Thirdly, Wilson J made it clear that she did not regard the analysis as available when someone's right to life was in question.

25. The European Convention on Human Rights

I have already observed how in 1983 Professor Glanville Williams discussed the way in which the increasing emphasis on the importance of human rights might be difficult to reconcile with the doctrine of necessity, being as it is an expression of the philosophy of utilitarianism. The fundamental importance of the right to protection of life is so ingrained in the English common law that I do not consider that any different solution to the dilemma we face can be found in the language of the European Convention of Human Rights ("ECHR") on which we received helpful oral submissions from Mr Owen and Mr Taylor in addition to Mr Anderson's written submissions.

I can take the ECHR points quite shortly because I have read in draft the judgment of Robert Walker LJ on these matters, with which I agree. I do not consider that the Woollin extension of the meaning of the word "intention" is appropriate when determining whether a doctor who performed a separation operation on conjoined twins in circumstances like these was intentionally killing the twin whose life was to be sacrificed. The doctor's purpose in performing the operation was to save life, even if the extinction of another life was a virtual certainty. Like Robert Walker LJ I do not consider that the adoption of an autonomous meaning of the word "intentionally" in Article 2(1) of the Convention need have any effect on the interpretation of the concept of "intention" in our national law, which has at long last been settled by the House of Lords in Woollin.

I should add that I was unattracted by Mr Owen's fall-back argument, to the effect that Article 2 contained an implied implication that the right it proclaims may be violated if it is in conflict with another person's Article 2 right. He based his argument on some words used by the European Commission on Human Rights in its decision in Paton v United Kingdom (App No 8416/78), 3 EHRR 408, 416, at para 23. The doctrine of inherent (or implied) limitation still appears to be in its infancy as a matter of Convention law (see Theory and Practice of the European Convention on Human Rights, Third Edition, by P van Dijk and GJH van Hoof at pp 763-5), and on the present state of Convention law I would be reluctant to hold, unless and until compelled to do so, that a right as fundamental as the right identified in Article 2 can be subject to an implied limitation which destroys its value.

Mr Anderson also relied, much less convincingly, on Articles 3 and 8 of the Convention. The medical evidence, which was not available to him, was to the effect that it is most unlikely that Mary can suffer pain, and I do not consider that her treatment during the course of the proposed operation (in which she will be under a general anaesthetic) could properly be described as inhuman or degrading within the meaning of Article 3. The facts of Ireland v United Kingdom A25 (1978), 2 EHRR 25, paras 96 and 167 and D v United Kingdom RSD 1997 – III 778, 24 EHRR 423, paras 51-53, are a very long way away from the present case. So far as Article 8 is concerned, once it is established on the welfare principle that Jodie's interests are to be preferred, then the reference to the protection of the rights and freedoms of others in Article 8(2) provides a justification for what would otherwise be a wrongful inference with Mary's Article 8(1) rights (which include a right not to be subjected to compulsory medical interference: see Peters v Netherlands 77A DR 75 (1994) at 79).

After this long analysis of the doctrine of necessity in our criminal law, I turn finally to the question whether it is, uniquely, available in the present case to provide a lawful justification for what would otherwise be an offence of murder.

26. Conclusion

I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens, supported as it was by the House of Lords in R v Howe. These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors. The first objection was evident in the court's questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality.

In my judgment, neither of these objections are dispositive of the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister's bloodstream.

It is true that there are those who believe most sincerely - and the Archbishop of Westminster is among them - that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary's life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in Section 1(1)(d) of the Abortion Act 1967 (as substituted) are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges.

There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency: see Lord Goff (in In re F at p 75D), the Law Commission in its recent report (Law Com No 218, paras 35.5 to 35.6), and Wilson J in Perka (at p 33).

There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with "unjust aggression", as Professor Glanville Williams has made clear in Section 26.3 of the 1983 edition of his book. None of the formulations of the doctrine of necessity which I have noted in this judgment make any such requirement: in this respect it is different from the doctrine of private defence.

If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.

According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.

Finally, the doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied them.

For these reasons I, too, would dismiss this appeal.

 

 

Lord Justice Robert Walker:

27.Conjoined twins

The tragic situation of Jodie and Mary is very rare in medical terms, and it appears to be unprecedented anywhere in the world in terms of full consideration of the legal position by a court. The basic statistics are that about one in ninety live births produces twins. About one in 250 live births produces monozygotic twins (identical twins from the division of a single fertilised ovum). Very rarely (a suggested figure is once in 100,000 births, although this figure is far from precise and seems to vary in different parts of the world) monozygotic twins fail to separate completely (as normally occurs about a fortnight after conception), resulting in conjoined twins. Rather over half of all conjoined twins are stillborn, and a further third both die within 24 hours. Only about 6 per cent of conjoined twins are classified as ischiopagus (joined at the pelvic level) and only about two per cent as ischiopagus tetrapus (joined at the pelvic level and having four legs).

Jodie's and Mary's medical condition is therefore very rare indeed. Their condition is even more exceptional in that - quite apart from abnormalities of their bodily organs in the region where they are joined - Mary has very grave defects in her brain, her heart, and her lungs. For practical purposes her lungs are non-existent. She is wholly dependent for life on oxygenated blood circulated through Jodie's lungs and Jodie's heart. The consultant paediatric and neonatal surgeon, Mr B, has described her as "totally supported" by Jodie. It is the strain on Jodie of supporting her sister as well as herself which is very likely to lead to the deaths of both twins within a matter of months, if they remain joined, because Jodie is likely to suffer what is called high output heart failure. There is no practical possibility of Mary being put on a heart-lung machine or receiving a heart-lung transplant. In an article (Hoyle and Thomas, 1989) reviewing 33 separations of ischiopagus tetrapus twins reported throughout the world between 1955 and 1986, only two seem to have been cases in which, for reasons other than a shared vital organ, one identified twin had no prospect of surviving the surgery (one was already dying when the surgery was undertaken, and the other was anencephalic).

The legal position has been considered in some published articles, including an article by Sally Sheldon and Stephen Wilkinson (Conjoined twins: the legality and ethics of sacrifice [1997] Medical Law Review 149) which contains a helpful discussion. But the only decision of a court referred to in any of the medical and legal literature is the decision in 1977 of a three-judge panel of the Family Court in Philadelphia which authorised an operation to separate thoracopagus twins with a conjoined heart (see George J Annas, Siamese twins: Killing one to save the other, Hastings Center Report April 1987). The article also mentions a similar operation in Philadelphia in 1987 in which the hospital obtained prior clearance from the District Attorney and approval from its own ethics committee, but did not go to court. It appears that in the 1977 case the parents (who were deeply religious Jews) had consented to the operation after taking rabbinical advice; and the hospital nurses (most of whom were Roman Catholics) had also been reassured by a priest. The application to the Family Court was made by the surgeon for his own protection. It does not appear whether the Family Court gave a reasoned judgment (the court is said to have deliberated for only a few minutes, so probably it did not).

In these circumstances this court has to start with some very basic questions. Are these conjoined twins two persons or one in the eyes of the law? If they are two persons, was Mary born alive? (If she was not born alive, there can be no possible question of criminal liability for her unlawful killing.)

Mr Adrian Whitfield QC (appearing with Mr Huw Lloyd for the Healthcare Trust) conceded that Jodie and Mary must be regarded as two separate persons, and he was clearly right to do so. They have two brains and two nearly complete bodies, despite the grave defects in Mary's brain and her heart and lungs. There are cases of incomplete (or heteropagus) twinning in which a child is born with abnormalities which can be regarded as no more than a parasitic attachment. But it has not been and could not be suggested that this case comes anywhere near that category.

The evidence also indicates that Mary, although incapable of separate existence, was born alive. A "still-born" child is defined (by the Births and Deaths Registration Act 1953 s.41, as amended) as

"a child which has issued forth from its mother after the twenty-fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any signs of life."

The medical notes from the hospital show that Mary was struggling to breathe, although sadly in vain, when she and Jodie were brought from the operating theatre into the recovery ward. Mr B (who would lead the operating team) was clear in his oral evidence to this court that Mary was not still-born, but that she could not be resuscitated and was not viable. Since her umbilical cord was cut she has been dependent for life on her sister. The fact that she is alive as a distinct personality, but is not viable as a separate human being, is the awful paradox at the centre of this case.

The definition in the 1953 Act applies only for the purposes of that statute, but it appears to correspond closely (except in the precision of the minimum 24-week term, which is not relevant here) to the position at common law: see generally the full historical review by my lord, Brooke J in Rance v Mid-Downs Health Authority [1991] 1 QB 587, 617-23. Mr David Harris QC (appearing with Mr Andrew Hockton, instructed by the Official Solicitor, for Mary) drew the court's attention to some passages in the speeches in Airedale NHS Trust v Bland 1993 AC 789 (most notably in the speech of Lord Browne-Wilkinson at pp.878-9) pointing out that as medical science has developed new techniques and equipment for the prolongation of human life, the law has had to redefine death (in terms of brain-stem death rather than cessation of unaided cardiovascular functioning). Mr Harris submitted that just as the law has had to redefine death, so it may have to redefine the concept of being born alive. There are a number of difficulties in the way of that argument but they need not be considered further since Mr Whitfield (and all other counsel who might have been concerned to argue the contrary) have rightly conceded that Mary is a human being and was born alive.

It hardly needs to be said that there is no longer any place in legal textbooks, any more than there is in medical textbooks, for expressions (such as 'monster') which are redolent of superstitious horror. Such disparagingly emotive language should never be used to describe a human being, however disabled and dysmorphic. But having studied the medical evidence and the photographs, the court must recognise that if the twins remain as they are, solidly joined at their trunks, with their genitals and legs at right angles to their bodies, and if the specialists from Great Ormond Street Hospital prove right in their prediction that a longer life-span is possible, there would be grave physical and (for Jodie) psychological problems to be faced. The appellant parents' counsel, Mr Simon Taylor, himself used emotive language to describe that prospect when he drew attention to the new medical evidence.

28.The welfare principle

The twins are not wards of court, nor have they been taken into care under the Children Act 1989. The Healthcare Trust's application to the court was made under the inherent jurisdiction of the court. But the proceedings are proceedings with respect to the twins' upbringing (which is defined in s.105 of the Children Act so as to include care). Therefore the court is bound by the overriding welfare principle in s.1(1) of that Act:

"the child's welfare shall be the court's paramount consideration."

In this case the court has to consider the welfare (or best interests - the expressions are synonymous) of each of the twins. The court has on several occasions had to consider a situation in which the interests of two minors appeared to be in conflict. In Birmingham City Council v H (a minor) [1994] 2 AC 212 the House of Lords had to consider a conflict between the interests of a mother (aged 14 when her child was born) and her son (who was aged 2 when the appeal was heard). The issue was resolved on the narrow ground that the only question to be determined by the court was in respect of the baby's upbringing. But in cases where questions as to the upbringing of two siblings are before the court, it appears that the court must normally undertake a balancing exercise to achieve the situation of least detriment, as the Court of Appeal had held in the case of the child mother and her baby: see Re H [1993] 1 FLR 883; also Re T and E (proceedings: conflicting interests) [1995] 1 FLR 581, 584-7.

However the decisions in which those conflicts of interests arose were decisions as to matters such as residence and contact which, however anxious and difficult, are routinely made by family judges. They were not decisions on a matter of life or death. The notion that the court should ever undertake the evaluation of the lives of two innocent human beings, with a view to deciding which should live and which should die, could not be reconciled with the law's respect for the sanctity (or inviolability) of human life, either before or after the incorporation of the European Convention on Human Rights. In his enumeration of the salient principles in Airedale NHS Trust v Bland [1993] AC 789, 808, Sir Thomas Bingham MR put this first:

"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."

This court has been shown many similar statements, both in law reports and in academic work, but it is unnecessary to multiply citations.

The court was referred to a number of reported decisions in which judges of the Family Division, or this court, have authorised the withdrawal of treatment (or the withholding of treatment on a future emergency) in the case of severely disabled children. It is not necessary to refer to all the cases which were cited. All are concerned primarily with the question of the best interests of a single child, and the weight to be given to the wishes of devoted parents. None goes far into the issue of lawfulness, since it did not arise.

In Re B (a minor) (wardship: medical treatment) [1981] 1 WLR 1421 this court (reversing the trial judge) authorised surgery, against the parents' wishes, for an intestinal blockage of a Down's syndrome baby who was only a few days old. The baby was not very severely disabled. In Re J (a minor) (wardship: medical treatment) [1991] Fam 33 this court (upholding the trial judge) authorised non-resuscitation (on a future emergency) of a six-month-old child who had been born very prematurely and had suffered very severe brain damage. Lord Donaldson MR said (at p.46):

"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."

In the same case Taylor LJ set out three principles which were not in dispute. The first related to the welfare principle and the weight to be given to parents' wishes. Taylor LJ went on (at p.53):

"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."

In Re T (wardship: medical treatment) [1997] 1 FLR 502 this court (reversing the trial judge) upheld the objections of devoted parents to an 18-month-old child undergoing an operation for a liver transplant after previous surgery had been unsuccessful, and had caused the child pain and distress. Butler-Sloss LJ (who was a member of the court) has since described the case as exceptional and as lying near one end of the spectrum of cases. One of its special features was that if the child were to have a successful liver transplant, it would require total commitment by the caring parent to the proposed treatment.

Re T (wardship: medical treatment) confirms, following Re Z (identification: restrictions on publication) [1997] Fam 1, that where parents withhold consent to a particular course of action the court's function is not limited to reviewing the parents' decision and reversing it only if it is unreasonable (as with an appellate court asked to reverse a lower court's exercise of discretion). The court exercises its own judgment. In Re Z Sir Thomas Bingham MR put it as follows (at pp 32-3):

"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."

There are to my mind particularly strong reasons for having regard to the parents' views in this case, even if they have been (as the judge put it) "overwhelmed by the circumstances that confront them". They have sincerely-held religious views (formed after discussion with a priest near the hospital, and now backed by the Archbishop of Westminster). Their views might be described as controversial but (unlike the objections to blood transfusion held by Jehovah's witnesses) they are not obviously contrary to any view generally accepted by our society. Still less are their views contrary to those generally accepted in the remote community from which they have come to this country. Healthcare services (and, it may be, social security) are less readily available in that community and the parents are naturally concerned about what the future would hold. No one suggested that it was selfish or unreasonable that they should have concerns about their ability, either financially or personally, to care for Jodie at home, if there is a separation operation which Jodie alone survives (they assume that there is no possibility of their taking both twins home without separation). That is so, I think, even if they have taken what is on the medical evidence a rather pessimistic view of the likely outcome for Jodie after elective surgery.

I would add, to avoid any possible misunderstanding, that the doctors and officers of the Healthcare Trust have themselves shown every consideration to the parents. This court has had the benefit of hearing oral evidence from Mr B, and has read transcripts of all the oral evidence given to the judge. It is impressive both for its sensitivity to the feelings and wishes of the twins' parents, and for its intellectual honesty. The medical specialists have faced up to the consequences for Mary of elective separation, but remain of the view that that separation is the best course.

The judge (who did not have the benefit of the very full and carefully-prepared arguments which this court has heard, and for which we are greatly indebted to all counsel and solicitors in the case) dealt with the matter by considering first the best interests of Jodie, then the best interests of Mary, and then (as a separate matter) the issue of lawfulness. Those issues are (in all too real a sense) not easily separated, and Mary's best interests cannot be fully considered except in the context of the decision of the House of Lords in Airedale NHS Trust v Bland [1993] AC 789, and the (perhaps even more difficult) questions of possible unlawfulness and criminal liability which arise on the facts of this case.

So far as it was appropriate to consider Jodie's best interests on their own the judge had ample material on which to conclude, as he did, that elective separation of the twins would be in the best interests of Jodie, despite the risk (which is put at about 6 per cent) of her not surviving the operation, and despite the risks of her quality of life being affected by incontinence, difficulty in walking, and the need for protracted reconstructive surgery. Those are risks - not probabilities, still less near-certainties - and they were fully addressed in the medical evidence. The judge mentioned them at the beginning of his judgment. Nevertheless he rightly said that for Jodie separation means the expectation of a normal life.

The judge came to the conclusion that separation would also be in Mary's best interests, even though it would result in her immediate death. As I have said, this raises very difficult issues. At present I deal primarily with the judge's findings of fact about Mary's condition. It is uncertain how far she can feel pain, but the evidence did not positively establish that she cannot feel pain. It did establish that she cannot cry, as she has no effective lungs. The judge was obviously very concerned about that, and about the prospect of Mary being caused pain and discomfort as Jodie becomes more mobile. He referred to the oral evidence of the paediatric neurosurgeon:

"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."

Mr Taylor and Mr Harris have respectfully but firmly criticised the judge for fastening on this evidence, to the exclusion of other evidence that Mary probably cannot feel pain. There may be some force in that criticism, although this court would be slow to differ from the findings of this very experienced family judge who had seen and heard all the witnesses. But even if it were assumed that Mary is no more capable of feeling pain or discomfort than she is of any pleasant sensation or emotion, it is hard to see any benefit to her from continued life. In Bland Lord Goff (at p.868) drew a distinction between cases in which the patient has (or may come to have) some awareness of his or her quality of life, and cases of total unconsciousness. Whichever category Mary should be put in I do not differ from the judge's conclusion that to prolong Mary's life for a few months would confer no benefit on her but would be to her disadvantage. If Mary had been born separated from Jodie but with the defective brain and heart and lungs which she has, and if her life were being supported, not by Jodie but by mechanical means, it would be right to withdraw that artificial life-support system and allow Mary to die.

29. Airedale NHS Trust v Bland

The facts of Airedale NHS Trust v Bland [1993] AC 789 are well known. A young man (aged 17 at the time of his injury, but of full age at the time of the application to the court) was so severely injured in the Hillsborough disaster that he was in a persistent vegetative state. His cerebral cortex had been destroyed and he had no awareness of his condition and no sensation of pain. But his brain stem was alive and (although he could not swallow and required feeding through a nasal tube) he could breathe spontaneously. (His condition was therefore the converse of a patient with Guillain-Barré syndrome as in the Canadian case of Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385; she had all her mental faculties but could not breathe and depended for continued life on a ventilator. The patient in the New Zealand case of Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 was in a more advanced state of that syndrome, in which the brain is alive but incapable of controlling the body because the conductivity of the nervous system has been destroyed.)

In the Bland case the House of Lords (upholding this court and the President of the Family Division) authorised the withdrawal of treatment (that is, artificial nutrition and hydration) but made clear that positive action to bring about the patient's death would be unlawful. Lord Goff said [1993] AC 789, 865,

" ... 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."

The practical result was that the patient died slowly from lack of nutrition and hydration, a process which caused him no pain, but which seems likely to have caused distress to the nurses who were caring for him. Switching off a ventilator is also regarded as a withdrawal of treatment (that is, as an omission rather than a positive act) even though it results (and is expected to result) in immediate death.

Many of the judges who considered the Bland case were understandably anxious about the intellectual robustness of the distinction between death brought about by an omission, on one hand, and death caused by a positive act, on the other hand. That appears very clearly in the speech of Lord Mustill. He said (at p.887):

"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."

At pp.897-8 he set out an argument which he regarded as "logically defensible and consistent with the existing law", but added (at p.898):

"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, 6th 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."

To the same effect Lord Lowry referred (at p.877) to a possible "distinction without a difference". Several of their lordships referred to the need for these questions of life and death to be determined by the democratic processes of Parliament, rather than by the court.

The switching-off or disconnection of a ventilator has also been regarded by the New Zealand court as a withdrawal of treatment: see the judgment of Thomas J in Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235, to which Lord Goff (at p.867) paid tribute in Bland. The Canadian case of Nancy B was different in that the court's function was to recognise the rights of self-determination of a mentally competent but physically disabled patient.

The decision of the House of Lords in Bland has (unsurprisingly, in view of its very controversial subject-matter) attracted criticism. So far as legal academic literature is concerned this court has been referred in particular to two well-argued articles in the Law Quarterly Review, (1993) 109 LQR 329 (Professor Finnis) and (1997) 113 LQR 481 (Dr Keown). But as Parliament has not since 1993 intervened to make any change in the law the decision in Bland is binding on this court, and it is important to identify the principle of the decision as precisely as possible.

The following points seem to be stated or approved in all five of their lordships' speeches and led to the result that the appeal in Bland should be dismissed. (1) The artificial feeding of the patient through a nasogastric tube constituted (at any rate in conjunction with other nursing care) medical treatment. (2) The discontinuance of artificial feeding should be regarded as an omission, since although the removal of the tube was a positive act the substance of the matter was the discontinuance of a treatment; and an omission to give treatment could not be unlawful or contrary to the patient's best interests unless there was a duty to treat him. (3) There was no duty on the doctors to administer to the patient treatment which was futile and contrary to his best interests. (4) None of this authorises or legalises a positive act intended to cause the patient's death, since (as Lord Goff put it at p.866) the law "does not, for reasons of policy, consider that it forms any part of [a doctor's] duty to give his patient a lethal injection to put him out of his misery." It is that reasoning which led Lord Goff to say (at p.868),

" ... the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care."

30. The judge's decision and the issues in the appeal

The judge considered whether elective separation would be in the best interests of Jodie and whether it would be in the best interests of Mary. In each case he concluded that it would be. He then considered the question of lawfulness, which he regarded as the most difficult element in his decision. If the operation is carried out Mary's death would be the inevitable result of positive action by the surgeons, who would at some stage place a clamp within Jodie's body and cut off the supply to Mary's body of oxygenated blood from Jodie's heart and lungs. She would die immediately. The judge said that he had not been presented with any argument based on the doctrine of double effect. He referred to the difficulty in this area of distinguishing between an act and an omission, and to the 'Rubicon' which might be crossed. This was an indirect reference to a passage (already cited) in the speech of Lord Goff in Bland, [1993] AC 789, 865. Having referred to these difficulties the judge said:

"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."

There are some serious difficulties about this way of looking at the case, as Mr Taylor and Mr Harris have pointed out. It is impossible, they submitted, to describe the proposed surgery as being a withdrawal of treatment. It is active surgical intervention which will be invasive of the bodies of both Jodie and Mary, and will result in the latter's death. Nevertheless Mr Harris recognised that the principle of bodily integrity, which is fundamental to the court's approach to these problems, is difficult to apply in the case of conjoined twins. Where twins are born alive but conjoined their physical integrity and autonomy has already been gravely prejudiced by the rare accident of incomplete separation at an early stage of gestation. But Mr Harris urged this court to take a principled approach, and not to decide this case in a way which might distort the development of the law. In this context he and other counsel drew attention to some cautionary observations in recent cases in the House of Lords (R v Kingston [1995] 2 AC 355, 375, 377; Hunter v Canary Wharf [1997] AC 655, 707; Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, 378-9).

The case put forward by Mr Taylor and Mr Harris is straightforward, and is supported by two important decisions of the House of Lords. A surgical operation to separate the twins would be a deliberate, positive act. It would be invasive of Mary's body and it would cause her death. Necessity, counsel said, is not a defence to murder: R v Howe [1987] AC 417. Nor is it a defence to say that the defendant did not wish to cause death, if it is for all practical purposes inevitable that that will be the result of his actions: R v Woollin [1999] 1 AC 82. Nothing in the cases on medical treatment, including Bland, is in any way inconsistent with those principles.

Against that apparently simple and compelling case various lines of argument have been put forward by those counsel who argued for elective separation (that is Mr Whitfield and Mr Tim Owen QC, who appeared for Jodie to argue the issues of criminal law; they received some degree of support from Miss Nicola Davies QC, Mr David Perry and Mr Gareth Patterson, who were appointed by the Attorney-General to assist the court, but made clear that they were not arguing for any particular outcome). These arguments overlap to some extent, as became apparent as soon as counsel's written submissions were delivered. It is convenient to note at the outset certain lines of argument which were not pursued (at any rate with any enthusiasm) in this court. No one argued that Mary could not be a victim of unlawful killing. No one other than Mr Whitfield argued that the operation could be equated with a withdrawal of treatment such as was regarded (in Bland) as an omission. That seems to have been the ground on which the judge based his decision as to lawfulness. Mr Whitfield sought to uphold this ground of decision, while candidly recognising the difficulties in his way. He pointed out that in the proposed operation no bodily organ or skin of Mary's would be transferred to Jodie (their shared bladder would be divided into two). Nevertheless it would be invasive of Mary's body. On the clear and undisputed evidence as to what the proposed operation would involve, it cannot be described as a withdrawal of treatment, or as an omission rather than a positive act.

The main submissions in favour of upholding the judge's order were based on intention and necessity (including the species of necessity sometimes referred to as private defence); and some counsel (although not Miss Davies) also relied on the doctrine of double effect, which no one had relied on below, but which can be seen as a sort of bridge between the issue of intention and the issue of necessity. The arguments run into each other. What follows is a summary treatment of difficult issues which are more fully and profoundly considered in the judgment of Brooke LJ.

31. Criminal law issues

There are various ways in which English criminal law gives effect to the general intuitive feeling that a defendant should not be convicted of a serious crime unless he did the prohibited act intentionally and in circumstances in which he should be held responsible for the consequences. Many of these are concerned with cases (which can all be loosely called cases of necessity) where the defendant's freedom of choice has in one way or another been constrained by circumstances.

But if a defendant's action is of its nature certain, or virtually certain, to produce a harmful result, he cannot normally be heard to say that he did not intend that result. In R v Woollin [1999] 1 AC 82 an angry father threw his three-month-old son on to a hard surface. The child suffered a fractured skull and died. The father was convicted of murder but because of a misdirection the House of Lords allowed his appeal (substituting a verdict of guilty of manslaughter). That was the context in which their lordships approved (as part of a model direction to the jury) the passage at p.96:

"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 decision of the House of Lords in Woollin has (it is to be hoped) finally resolved a debate as to the mental element requisite for murder ("malice aforethought" is the traditional but archaic phrase) which has been continuing intermittently since DPP v Smith [1961] AC 290, with legislative intervention in the form of s.8 of the Criminal Justice Act 1967. Mr Owen submitted that Woollin may have to be reconsidered in the light of the Human Rights Act 1998 and Article 2 of the European Convention on Human Rights. I would not accept that submission, if it were relevant, for reasons set out later in this judgment.

However the stark facts of Woollin and the speeches in the House of Lords in that case say nothing at all about the situation in which an individual acts for a good purpose which cannot be achieved without also having bad consequences (which may be merely possible, or very probable, or virtually certain). This is the doctrine (or dilemma) of double effect which has been debated by moral philosophers (as well as lawyers) for millennia rather than centuries. In one class of case the good purpose and the foreseen but undesired consequence (what Bentham called 'oblique intention') are both directed at the same individual. That can be illustrated by a doctor's duty to his patient. The doctor may in the course of proper treatment have to cause pain to the patient in order to heal him. Conversely he may in order to palliate severe pain, administer large doses of analgesics even though he knows that the likely consequence will be to shorten the patient's life. That was recognised by Lord Donaldson MR in the passage of his judgment in Re J which I have already cited (note its references to primary purpose and side effects; similar language was used by Ognall J in his summing-up to the jury in R v Cox (1992), the case of the doctor who administered potassium chloride to a dying patient). Similarly Lord Goff referred in Bland (at p.867) to

" ... 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."

In these cases the doctrine of double effect prevents the doctor's foresight of accelerated death from counting as a guilty intention. This type of double effect cannot be relevant to conduct directed towards Mary unless the mere fact of restoring her separate bodily integrity, even at the moment of death, can be seen as a good end in itself and as something which ought to be achieved in the best interests of Mary as well as Jodie.

There is another class of case in which a person may be faced with the dilemma of whether to save himself or others at the cost of harm or even death to a third person. The dilemma generally rises as the result of an emergency, and the examples (real or imagined) are typically concerned with disasters at sea, or emergencies during mountaineering or other hazardous activities. If a person, faced with such a dilemma, acts with the intention of saving his own life (or the lives of others) it may be said that that leaves no room for a guilty intention to harm or even kill the third person. Equally it may be said that although he must (on Woollin principles) be taken to have intended the death which he foresaw as virtually certain, he has a defence of necessity. That is the way the submission was put by Miss Davies.

Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engineroom. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engineroom. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellow-climber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, "You did right". This incident is mentioned in Professor Smith's 1989 Hamlyn Lectures, Justification and Excuse in the Criminal Law, p.79.

The House of Lords has made clear that a doctrine of necessity does form part of the common law: see Re F (mental patient: sterilisation) [1990] 2 AC 1 (especially in the speech of Lord Goff at pp.74-8) and R v Bournewood Community and Mental Health Trust ex parte L [1999] 1 AC 458. In the latter case Lord Goff said (at p.490):

"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."

In R v Howe [1987] AC 417 the House of Lords held that duress by threats is no defence to a charge of murder (and in R v Gotts [1992] 2 AC 412 that has, by a bare majority, been extended to attempted murder; the dissenting speech of Lord Lowry merits careful study). In Howe Lord Hailsham (at p.429) referred to what he called the famous and important case of R v Dudley and Stephens (1884) 14 QBD 273, in which two shipwrecked mariners, adrift in a boat, killed the ailing cabin-boy and survived by eating his flesh. They were convicted of murder but the death sentence was commuted. Lord Hailsham said that that case was generally regarded as an authority on the "supposed defence of necessity" but he went on,

"There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. 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 threats."

Similarly the defence of private defence (action in defence of one's own life, person or property, or in defence of the life, person or property of another) can be seen as a species of a more general defence based on necessity. The law lays great stress on action in self-defence being no more than is necessary: see Palmer v R (1971) AC 814, especially at pp.828-9. But it is clear that deliberate killing in self-defence can sometimes be justified.

Duress of circumstances can therefore be seen as a third or residual category of necessity, along with self-defence and duress by threats. I do not think it matters whether these defences are regarded as justifications or excuses. Whatever label is used, the moral merits of the defence will vary with the circumstances. The important issue is whether duress of circumstances can ever be a defence to a charge of murder. There is authority that it can be a defence to the very serious crime of aircraft hijacking contrary to s.1 of the Aviation Security Act 1982 (for which the maximum punishment is life imprisonment) : see R v Abdul-Hussain and others (Court of Appeal Criminal Division, 17 December 1998). The judgment of the court in that case, delivered by Rose LJ, examined the development of the defence. Rose LJ stated the principles which he derived from the authorities, the first three principles being as follows:

"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.

2. 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).

3. 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)."

The hijacking case concerned Shiite Muslims from southern Iraq. Many members of their families had been tortured and killed and they faced similar threats. Duress of circumstances was therefore a much more suitable description of their plight than the dilemma facing the doctors in this case. The doctors are not faced with any threat to themselves, but they are faced with the anxious dilemma of trying to perform the professional duties which they owe to their two infant patients.

The special features of this case are that the doctors do have duties to their two patients, that it is impossible for them to undertake any relevant surgery affecting one twin without also affecting the other, and that the evidence indicates that both twins will die in a matter of months if nothing is done. Whether or not that is aptly described as duress of circumstances, it is a situation in which surgical intervention is a necessity if either life is to be saved.

I do not find any clear principle in R v Howe, R v Gotts or R v Abdul-Hussain which applies to the clinical dilemma which faces the doctors in this case. Like the other members of the court I have derived assistance from the minority judgment of Wilson J given in the Supreme Court of Canada in the case of Perka and other v The Queen (1984) 13 DLR (4th) 1. The facts of that case were totally different (a ship used by drug smugglers had been driven ashore by a storm) but the judgment of Wilson J discusses the underlying principles and the importance of a conflict between legal (as opposed to moral) duties.

Wilson J said at pp.34-5,

"Accordingly, not only can the system of positive law not tolerate an individual opting to act in accordance with the dictates of his conscience in the event of a conflict with legal duties, but it cannot permit acts in violation of legal obligations to be justified on the grounds that social utility is thereby increased. In both situations the conflicting "duty" to which the defence arguments point is one which the court cannot take into account as it invokes considerations external to a judicial analysis of the rightness or wrongness of the impugned act. As Lord Coleridge CJ succinctly put it in Dudley and Stephens, supra, at p.287: "Who is to be the judge of this sort of necessity?"

On the other hand, in some circumstances defence counsel may be able to point to a conflicting duty which courts can and do recognize. For example, one may break the law in circumstances where it is necessary to rescue someone to whom one owes a positive duty of rescue (see R v Walker) (1979), 48 CCC (2d) 126, 5 MVR 114 (Ont. Co. Ct.)), since failure to act in such a situation may itself constitute a culpable act or omission: see R v Instan, [1893] 1 QB 450. Similarly, if one subscribes to the viewpoint articulated by Laskin CJC in Morgentaler, supra, and perceives a doctor's defence to an abortion charge as his legal obligation to treat the mother rather than his alleged ethical duty to perform an unauthorized abortion, then the defence may be invoked without violating the prohibition enunciated by Dickson J in Morgentaler against choosing a non-legal duty over a legal one."

She said at p.36

"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.

As the facts before the court in the present case do not involve a conflict of legal duties it is unnecessary to discuss in detail how a court should go about assessing the relative extent of two evils. Suffice it to say that any such assessment must respect the notion of right upon which justification is based. 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."

Wilson J's reference to a conflict of duties in relation to abortion must be treated with caution because of the well-established rule that English law (like Canadian law, but here differing markedly from the teaching of the Roman Catholic church) does not regard even a viable full-term foetus as a human being until fully delivered: see the account in Rance v Mid-Downs HA [1991] 1 QB 587, 617-23 to which I have already referred, and also St George's Healthcare NHS Trust v S [1999] Fam 26, 45-50. There is in law no real analogy between Mary's dependence on Jodie's body for her continued life, and the dependence of an unborn foetus on its mother.

In truth there is no helpful analogy or parallel to the situation which the court has to consider in this case. It is unprecedented and paradoxical in that in law each twin has the right to life, but Mary's dependence on Jodie is severely detrimental to Jodie, and is expected to lead to the death of both twins within a few months. Each twin's right to life includes the right to physical integrity, that is the right to a whole body over which the individual will, on reaching an age of understanding, have autonomy and the right to self-determination: see the citations from Bland collected in the St George's Healthcare case at pp.43-5.

In the absence of Parliamentary intervention the law as to the defence of necessity is going to have to develop on a case by case basis, as Rose LJ said in R v Abdul-Hussain. I would extend it, if it needs to be extended, to cover this case. It is a case of doctors owing conflicting legal (and not merely social or moral) duties. It is a case where the test of proportionality is met, since it is a matter of life and death, and on the evidence Mary is bound to die soon in any event. It is not a case of evaluating the relative worth of two human lives, but of undertaking surgery without which neither life will have the bodily integrity (or wholeness) which is its due. It should not be regarded as a further step down a slippery slope because the case of conjoined twins presents an unique problem.

There is on the facts of this case some element of protecting Jodie against the unnatural invasion of her body through the physical burden imposed by her conjoined twin. That element must not be overstated. It would be absurd to suggest that Mary, a pitiful and innocent baby, is an unjust aggressor. Such language would be even less acceptable than dismissing Mary's death as a 'side-effect'. Nevertheless, the doctors' duty to protect and save Jodie's life if they can is of fundamental importance to the resolution of this appeal.

32. The European Convention on Human Rights

Article 2 of the European Convention on Human Rights provides for the right to life. It is in the following terms:

"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 right has, naturally enough, been described as one of the most fundamental provisions of the Convention (McCann v United Kingdom A 324 (1995), para 146).

Article 2 was in the forefront of the written submissions of Mr David Anderson QC on behalf of the Pro-Life Alliance. Mr Anderson also made submissions based on Articles 3 and 8 of the Convention and on Article 2 of the Fourth Protocol to the Convention. The last-mentioned submissions would be relevant only if there were a dispute, which at present there is not, about the twins being moved to another country. Mr Anderson's submissions on Article 2 of the Convention were on the same lines as those of Mr Taylor and Mr Harris, but were more fully developed. Mr Anderson submitted that the word "intentionally" in Article 2 (1) should be given its natural and ordinary meaning, and that the Strasbourg jurisprudence has no hint of the doctrine of double effect. It does not admit of necessity. The positive obligation in the first sentence of Article 2(1) (which is the only provision on which Jodie could rely) is a very much weaker obligation (see Osman v United Kingdom 1998 - V111 3124, para 116).

Mr Owen did not seek to rely on any part of Article 2(2). He rightly accepted that Mary's dependence on Jodie's cardiovascular system, however life-threatening to Jodie, could not be described as unlawful violence. But Mr Owen and Mr Whitfield both relied strongly on the word 'intentionally' (in French 'intentionnellement') in Article 2(1). Mr Owen seized on Mr Anderson's submission that the word should be given its natural and ordinary meaning. That meaning, he said, was limited to the purpose of an action. The Woollin principle, extending intention to foreseen but undesired consequences, did not apply. That was why the draftsmen of Article 2 did not think it was necessary to include further qualifications relating to double effect. (Mr Owen went so far as to submit that the Woollin principle will have to be modified as a result of the coming into force of the Human Rights Act 1998. I do not follow that submission. The Convention does not in any way restrict a contracting state as to how the most serious form of homicide is defined in its domestic law.)

Mr Anderson's submissions were clearly and skilfully developed but I do not accept them. The Convention is to be construed as an autonomous text, without regard to any special rules of English law, and the word "intentionally" in Article 2(1) must be given its natural and ordinary meaning. In my judgment the word, construed in that way, applies only to cases where the purpose of the prohibited action is to cause death. It does not import any prohibition of the proposed operation other than those which are to be found in the common law of England. The coming into force of the Human Rights Act 1998 on 2 October next does not therefore alter my view of the case. The incorporation of the Convention into domestic law is a very important event but in this case its effect is to confirm, and not to alter, pre-existing law.

33. The Archbishop's submissions

This court has also accepted written submissions made by the Roman Catholic Archbishop of Westminster, the Most Reverend Cormac Murphy-O'Connor. Those submissions make five salient points based on Roman Catholic faith and morality. These are, first, that human life is sacred and inviolable. Secondly, a person's bodily integrity should not be invaded when that can confer no benefit. Thirdly, the duty to preserve one person's life cannot without grave injustice be effected by a lethal assault on another. Fourthly, there is no duty on doctors to resort to extraordinary means in order to preserve life. Fifthly, the rights of parents should be overridden only where they are clearly "contrary to what is strictly owing to their children". The rest of the submissions are very largely submissions as to English law and cover points already considered in this judgment.

The five salient points made by the Archbishop are entitled to profound respect. In general they underpin some important foundations of English law (although the fifth point does not form part of English law) and they have no doubt been reflected in the advice which the twins' parents have received from their local priest. But they do not explain or even touch on what Roman Catholic moral theology teaches about the doctrine of double effect, despite its importance in the Thomist tradition (there is some evidence that the doctrine was considered by the Roman Catholic Archdiocese of Philadelphia in the case in 1977 which I have already mentioned: see Thomasma and other, The Ethics of Caring for Conjoined Twins, Hastings Center Report July-August 1996, p.9). The term 'casuistry' has come to have bad connotations but the truth is that in law as in ethics it is often necessary to consider the facts of the particular case, including relevant intentions, in order to form a sound judgment.

I do not by that imply any criticism of the Archbishop's moderate and thoughtful submissions, which the court has anxiously considered. But ultimately the court has to decide this appeal by reference to legal principle, so far as it can be discerned, and not by reference to religious teaching or individual conscience.

34. Conclusions

In this case highly skilled and conscientious doctors believe that the best course, in the interests of both twins, is to undertake elective surgery in order to separate them and save Jodie. The surgery would not be intended to harm Mary but it would have the effect of ending her life, since her body cannot survive on its own (and there is no question of her life being prolonged by artificial means or by a heart-lung transplant). The doctors' opinion cannot be determinative of the legality of what is proposed - that responsibility has fallen on the court - but it is entitled to serious respect. In Gillick v West Norfolk and Wisbech AHA [1986] AC 112, 190 Lord Scarman (with whom Lord Fraser and Lord Bridge agreed) said (in relation to the supply of contraceptives to a girl under 16):

"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."

Here the court is concerned with the possibility of the commission of a much more serious criminal offence, that is murder. But in the wholly exceptional case of these conjoined twins I consider that the same principles apply. In Bland Sir Thomas Bingham MR (whose judgment was approved in the House of Lords by Lord Goff and a majority of their lordships) was prepared to put the matter very broadly ([1993] AC 789 at p.815):

"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."

In this case the doctors would perform a positive act of invasive surgery, but they would do so for the well-intentioned purposes which I have mentioned. The surgery would plainly be in Jodie's best interests, and in my judgment it would be in the best interests of Mary also, since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them. As Thomas J said in the Auckland case [1993] 1 NZLR 235, 245,

"Human dignity and personal privacy belong to every person, whether living or dying."

Much of this judgment has necessarily been rather technical, and I am conscious that some of it may seem rather remote from the deeply troubling dilemma which Jodie's and Mary's condition presents. Every member of the court has been deeply troubled by this case, but we have to decide it in accordance with the principles of existing law as we perceive them to apply to this unprecedented situation. I will summarize my conclusions as to the applicable principles as simply as I can.

(i) The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests.

(ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal must form its own view.

(iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian foundations) and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her.

(iv) But Jodie also has a right to life.

(v) Every human being's right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy - the right to have one's own body whole and intact and (on reaching an age of understanding) to take decisions about one's own body.

(vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them.

(vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.

(viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all.

(ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another.

(x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable.

I would therefore dismiss this appeal.

Lord Justice Ward:-

Summary: A (Children)

I want to make it as clear as I possibly can that what my Lords and I are about to say is not our judgment in this agonising and difficult case. Our judgments have been reduced to writing and exceed 130 pages of single spaced typescript. We will hand them down in a moment and they will then be published on the internet. You will find them at www.courtservice.gov.uk. You must look to those written judgments, and only to them, for a record of our decision and the detailed reasons we give for it. If it convinces you of nothing else it ought to persuade you that each of us has truly agonised over this difficult case. The tragedy for this family has never been out of mind and I feel more sorrow for them today even than I did when first learning of their plight.

What we propose to do now is each to give you a very short summary, indeed no more than an outline, of our decision.

The unique and the crucial feature of the case is that the twins share a common aorta. That enables Jodie’s heart to pump the blood she oxygenates through Mary’s body as Mary’s heart and lungs have no capacity to sustain life. She would have died probably in the womb but certainly at birth but for the life-sustaining support she received from her sister. The sad fact is that she lives on borrowed time, all of it borrowed from her sister. She is incapable of independent existence. She is designated for death.

Doing the work for two imposes a terrible strain on Jodie’s heart. It is common ground that her heart will fail and she will suffer a cardiac arrest. She is not expected to live more than 3-6 months, or perhaps a little longer. Mary’s death will inevitably follow hers.

It is not in dispute that the twins can be separated without significant risk to Jodie. That will leave Jodie living a more or less normal life, not without its problems, of course, and no one will shoulder the burden of those difficulties more than these devoted parents, especially as the facilities at home do not match the services they can enjoy here.

The separation will result in certain death for Mary within minutes of the common aorta being severed. Thus in deciding whether or not to consent to this operation the parents have had to confront the cruel reality that surgery will save Jodie but it will kill Mary. They could not bring themselves to give that consent because their girls are equal in their eyes and in their love. They sincerely believe that it was God’s will that they be born with the afflictions they have and that they should be left to live their lives joined together as they are for so long as God in his mercy shall ordain it.

The hospital, on the other hand, could not in conscience suffer a life to be lost and, although they were fully entitled to submit to the parents’ wishes, they are every bit as entitled to come to court and invite the court to decide that critical question of life and death. That is what a court is for.

The case has raised acute moral and ethical questions and those principles and the religious foundations for them have been well presented to us by the Archbishop of Westminster to whom we are indebted. They have rightly become the subject of huge public interest and public debate. It is, however, necessary to stress the obvious. This is not a court of morals but a court of law and our decision has to be taken from a solid base of legal principle.

So I turn to the law. It is a trite medical law that every person’s body is inviolate and that it is an unlawful assault to operate without consent. In the case of a young child, it is not only the right but it is also the duty of the parents to give consent on the child’s behalf if it is in the best interests of the child to do so. If the parents refuse, the hospital cannot operate but it is entitled to invite the court to override the parents’ refusal and to give approval for the operation.

This introduces principles of family law. Again it is trite that the court’s duty when determining any question with respect to the upbringing of a child - and that includes the child’s medical care – is to make the child’s welfare the court’s paramount consideration. So what is best for the child dictates the outcome, subject always to this: the court cannot approve a course of action which may be illegal. So there is an interaction between the family law consideration of welfare and the criminal law consideration of unlawfulness. I have concluded that this is a two stage process. The first is to ask where the best interests of the child lie. If the welfare consideration dictates that the operation must be performed, the court can approve the operation but conditionally, always subject to and dependent upon the outcome of the second stage of the court’s enquiry which is whether or not the carrying out of that operation would be unlawful.

Thus four crucial issues arise.

1. Is it in Jodie’s best interests that she be separated from Mary?

2. Is it in Mary’s best interests that she be separated from Jodie?

3. If those interests are in conflict can the court balance the interests of one against the other and so allow one to prevail against the other and if that is permissible, how is that balancing exercise to be undertaken?

4. If the prevailing interest is in favour of the operation being performed, can it be lawfully performed?

There is, however, a preliminary issue both in civil law and criminal law namely whether or not Mary is a live person in her own right. The medical evidence is overwhelmingly to the effect that she is and the law supports that conclusion. I am delighted that is so. Old notions of " monstrous birth" are to deprecated in the 21st century.

As to Jodie’s best interests, Johnson J. found and was right to find that the operation would be to her benefit. The experts from the Great Ormond Street Hospital for Children, who provided a second opinion for us, confirm that Jodie should be able to live a fairly normal or at least a not intolerable life. Whatever her residual disabilities, as to which you must see the full judgment, they are likely to be slight in weight in comparison with the strength of her right to claim, as a human being, the dignity of her own free, separate body. In my judgment it is overwhelmingly in her interest that she be given the chance to live a normal life with a normal expectation of life. It is certainly not in her interest to be left to die.

Determining where Mary’s welfare lies is more difficult. The judge found, and I agree, that her state is pitiable and will never improve. There is no reliable way to test whether she is in pain for she responds to pain and pleasure in the same way. Nevertheless the judge accepted evidence that it was "an horrendous scenario" to contemplate that Jodie should struggle to drag Mary behind her, something which would have to hurt Mary. The real issue of difficulty for me lies in the judge’s finding that the remaining few months of her life if not separated would "be simply worth nothing to her, they would be hurtful." This led him to conclude that "to prolong Mary’s life for these few months would be very seriously to her disadvantage". Whether these remaining months will be hurtful or not is not the important question in this case. What is of real importance and public interest is the assessment that her life is worth nothing. That brings into sharp focus the dichotomy between an approach which looks at the quality of the patient’s life and the approach which treats the sanctity of life not only as an overarching moral consideration, as the Archbishop views it, but also as a cornerstone of the law. The sanctity of life doctrine is so enshrined as a fundamental principle of law and commands such respect from the law that I am compelled to accept that each life has inherent value in itself however grave the impairment of some of the body’s functions may be. I am satisfied that Mary’s life, desperate as it is, still has its own ineliminable value and dignity. In my judgment the learned judge was wrong to find it was worth nothing.

He also erred in his finding that to prolong Mary’s life would be seriously to her disadvantage. He wrongly characterised the nature of the treatment. No treatment was here being proposed to prolong her life in the way Tony Bland’s artificial support systems prolonged his. Surgery would amount to a positive act of invasion of her bodily integrity with no medical or other benefit flowing from it at. Such satisfaction she would enjoy from having a body of her own is illusory because she will die as soon as the separation has been completed. In my judgment it cannot be in Mary’s best interests to undergo surgery which will terminate her life.

That places the court on the painfully sharp horns of dilemma. The court’s duty is to put the welfare of each child paramount. It is in the best interests of Jodie that separation takes place: it is in the best interests of Mary that it does not. There is an irreconcilable conflict and the court cannot fully honour its separate duty to each child to do what is best for that child. The court is placed in an impossible position. How to resolve it has presented me with one of real difficulties in the case because it is crucial to the eventual outcome. After anxious thought I conclude that the court cannot abdicate responsibility and simply say it is too difficult to decide. We are here to make tough decisions. In my judgment the only solution is to balance the welfare of each child against the other to find the least detrimental alternative.

In assessing what the welfare of the children dictates, looking at them individually and as a family, I do not forget that because the parents’ wishes are capable of ministering to the total welfare of the child in a special way, those wishes must be treated with respect and must not be lightly set aside. In law the parental view is not sovereign. Moreover in law the court’s task is not confined to a review of the parent’s decision looking only to see whether it fell within that broad band within which reasonable parents are reasonably entitled to different views. If that were the task I would have no hesitation in saying that the parent’s position taken after prayerful consideration is pre-eminently reasonable. I am satisfied that the court’s duty laid down by law, invidious though that may seem to some, is to give effect to its own judgment of where the best interests of the child lie. In my view the parents take an unduly pessimistic view of the prognosis for Jodie. Their personal hardship in coping with her with such disabilities as she will have to bear command great sympathy but the difficulties for the parents and the difficulties for Jodie cannot outweigh the right to life to which their child is entitled. The parents’ wishes do not persuade me that it is right that Jodie should be denied the enjoyment of a life for which she is well equipped.

So I have to balance the welfare of one child against the other. Into each scale goes their right to life. This right is universal: we all share it equally. The scales remain in balance. I am not entitled to value the quality of one human life as worth more than another’s and I do not do so. But it is legitimate to look at the actual condition of the children as they are and assess their legitimate expectations when determining whether it is worth treating them. The worthwhileness of the proposed treatment is a legitimate factor to weigh. For the reasons given the treatment is not worthwhile for Mary for one cannot escape from the fact that Mary has always been fated for early death: her capacity to live has been fatally compromised. Though Mary has a right to life, she has little right to be alive. She is alive because and only because to put it bluntly but nonetheless accurately she sucks the lifeblood of Jodie and her parasitic living will soon be the cause of Jodie ceasing to live. Jodie is entitled to protest that Mary is killing her. Nobody but the doctors can help Jodie. Mary sadly is beyond any help. The best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage even if that has to be at the cost of the sacrifice of a life which is so unnaturally supported. I am therefore left in no doubt at all that the scales come down heavily in Jodie’s favour. I am wholly satisfied that the least detrimental choice is to permit separation to take place..

But it remains subject to the analysis of whether the operation is lawful. This has involved the court in an arduous trawl through the authorities and the text books, ancient and modern. The first crucial question is whether the doctors will be judged to intend to kill Jodie. The law was clarified by the House of Lords in 1999. That authority requires me to ask myself whether I am satisfied that the doctors recognise that death or serious harm will be virtually certain to result from carrying out this operation. If so the doctors intend in law to kill even though they may not have any desire to achieve that result. On the basis of that test the ingredient of intention as an element of murder is established. The doctrine of double effect has no application where the bad side effect is suffered by a third person for whom the act in question provides no benefit.

Thus the appeal turns upon the crucial and difficult question of whether the doctors would be able in law to justify or excuse their conduct. I acknowledge this has not been easy to decide. The House of Lords has set its face against defences of necessity and duress as justifying or excusing the deliberate taking of innocent life. The policy consideration which shapes this view is the importance of the sanctity of human life. But Lord MacKay posed the question whether circumstances could ever be extreme enough for the law to confer a right to choose that one innocent person should be killed rather than another. That is the crucial question in this case.

Two features seem to me to be important. The first is that the doctors are placed under a legal duty to do what is best for their patient. That at once places them in a position of impossible conflict. They are under a duty to Mary not to operate because it will kill her but they are under an equally powerful duty to Jodie obliging them to operate because not to do so will kill this twin. The doctors should be in no different position from that in which the court itself was placed in the performance of its duty to give paramount consideration to the welfare of the child. In those circumstances it seems to me the law must allow an escape by permitting the doctors to choose the lesser of the two evils. The doctors must conduct their balancing exercise in the same way as the court has had to do. The answer is the same.

There is a second reason why it seems to me that the proposed operation will not in any event offend the sanctity of life principle. This is not an absolute rule. It demands only that life is to be protected from unjust attack. In a joint statement by the Anglican and Roman Catholic bishops in the aftermath of Bland they stated that because human life is a gift from God to be preserved and cherished the deliberate taking of human life is prohibited except in self-defence or in the legitimate defence of others. The Archbishop defines the principle in terms that human life is sacred and inviolable so that one should never aim to cause an innocent person’s death by act or omission. The reality here, harsh as it is to state it and unnatural as it is that it should be happening, is that Mary is killing Jodie. To label Mary as an "unjust aggressor" is wholly inappropriate for the sad and helpless position in which Mary finds herself. This unique happening cannot be said to be unlawful. But in my judgment it does not have to unlawful. The six year old boy indiscriminately shooting all and sundry in the school playground is not acting unlawfully because he is too young for his acts so to be classified. In my judgment, however, and this is a judgment on a question of law, not morality – though, for what it is worth, I personally would think the position is the same – that child may be killed in legitimate self-defence. I see no difference in essence between that resort to self-defence and the doctors’ coming to Jodie’s defence and removing the threat of fatal harm to her presented by Mary’s draining her life blood.

I conclude, therefore, that the operation can be lawfully carried out.

The Human Rights Act 1998 looms over us. The rights it guarantees are as much in conflict with each other as the doctors’ duties and I do not believe that the court in Strasbourg would come to any other conclusion than the one to which we have been driven.

I would therefore dismiss the appeal but, lest it be thought that this decision could become authority for any wider proposition such as that a doctor can kill the patient once he has determined that a patient cannot survive, it is important to restate the unique circumstances for which this case is authority. They are that it must be impossible to preserve the life of X. without bringing about the death of Y. That Y. by his or her very continued existence will inevitably bring about the death of X. within a short period of time and that X. is capable of living an independent life but Y. is incapable under any circumstances including all forms of medical intervention of viable independent existence. As I say at the beginning of my judgment this is a very unique case.

Lord Justice Brooke:

I am in entire agreement with Ward LJ on all the issues of family law which arise in this case. I also agree that the European Convention of Human Rights does not compel us to reach a different conclusion from any which we might reach as a matter of English national law.

So far as the facts are concerned, there was evidence before the judge that if these children remain conjoined, Mary's chronic lock of oxygen might lead, through their common bloodstream, to Jodie suffering from cerebral palsy or from excessive bleeding even if her heart is not overwhelmed as early as the cardiologists expect. Mary's conjoined existence therefore poses a serious threat to Jodie in more ways than one.

As for the criminal law, four issues arise. Is Mary a human being in the eyes of the law? The answer is yes. Would the proposed operation amount to the positive act of killing Mary? The answer is Yes. Would the doctors be held to have the intention of killing Mary, however little they desire that outcome? The answer is again yes. The doctrine of double effect, which permits a doctor, acting in good faith, to administer pain-killing drugs to her dying patient, has no relevance in this case. This leaves open the single question? Would the killing be unlawful?

In my judgment I have examined in detail the history of the obscure doctrine of necessity in our criminal law. Although I have referred to Aristotle, Cicero, Bracton, Bacon, Coke, Hobbes, Locke, Hale and Blackstone, I have focused mainly on English thinking on this topic since the Criminal Law Commissioners' report in 1839. In particular, I have examined the two policy reasons which led a five-judge court in 1884 to deny the defence of necessity on a charge of murder to the survivors of the yacht Mignonette, reasons which the House of Lords itself affirmed in 1987.

The first policy objection was: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? In the present case Mary's brain, heart and lungs are for all practical purposes useless. She is already "designated for death". It is not a case in which both children have the chance of living.

The second policy objection was that to permit such a defence would mark an absolute divorce of law from morality. Although there are those who believe most sincerely that it would be an immoral act to save Jodie, if this would involve ending Mary's life before its brief allotted span is complete, there are also those who believe with equal sincerity that it would be immoral not to save Jodie if there is a good prospect that she might live a happy, fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut situation, leading to a divorce of law from morality, which was of such concern to our predecessors in 1884.

It has been said that there are three necessary requirements for the application of the doctrine of necessity. The act is needed to avoid inevitable and irreparable evil. No more should be done than is reasonably necessary for the purpose to be achieved. The evil inflicted must not be disproportionate to the evil avoided.

Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the interests of Mary, I consider that all these requirements are satisfied in this case.

Finally, the doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied them.

The proposed operation would therefore not be unlawful. I, too, would dismiss this appeal.




Lord Robert Walker

 

Conclusions

In this case highly skilled and conscientious doctors believe that the best course, in the interests of both twins, is to undertake elective surgery in order to separate them and save Jodie. The surgery would not be intended to harm Mary but it would have the effect of ending her life, since her body cannot survive on its own (and there is no question of her life being prolonged by artificial means or by a heart-lung transplant). The doctors’ opinion cannot be determinative of the legality of what is proposed - that responsibility has fallen on the court - but it is entitled to serious respect. In Gillick v West Norfolk and Wisbech AHA [1986] AC 112, 190 Lord Scarman (with whom Lord Fraser and Lord Bridge agreed) said (in relation to the supply of contraceptives to a girl under 16):

"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."

Here the court is concerned with the possibility of the commission of a much more serious criminal offence, that is murder. But in the wholly exceptional case of these conjoined twins I consider that the same principles apply. In Bland Sir Thomas Bingham MR (whose judgment was approved in the House of Lords by Lord Goff and a majority of their lordships) was prepared to put the matter very broadly ([1993] AC 789 at p.815):

"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."

In this case the doctors would perform a positive act of invasive surgery, but they would do so for the well-intentioned purposes which I have mentioned. The surgery would plainly be in Jodie’s best interests, and in my judgment it would be in the best interests of Mary also, since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them. As Thomas J said in the Auckland case [1993] 1 NZLR 235, 245,

"Human dignity and personal privacy belong to every person, whether living or dying."

Much of this judgment has necessarily been rather technical, and I am conscious that some of it may seem rather remote from the deeply troubling dilemma which Jodie’s and Mary’s condition presents. Every member of the court has been deeply troubled by this case, but we have to decide it in accordance with the principles of existing law as we perceive them to apply to this unprecedented situation. I will summarize my conclusions as to the applicable principles as simply as I can.

(i) The feelings of the twins’ parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins’ best interests.

(ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal must form its own view.

(iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian foundations) and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her.

(iv) But Jodie also has a right to life.

(v) Every human being’s right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy - the right to have one’s own body whole and intact and (on reaching an age of understanding) to take decisions about one’s own body.

(vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them.

(vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary’s death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.

(viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all.

(ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another.

(x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie’s life. But Mary’s death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable.

I would therefore dismiss this appeal.

 

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