IV

The criminal law.

1. Introduction.

It is obvious that the question whether or not this operation can be lawfully performed is crucial to the outcome of the appeal. What I confess I had not fully appreciated was how rooted in obscurity the answer to those difficulties was. Brooke L.J. was fully aware of all the intricacies and he set counsel a rigorous reading list to meet our concerns. I am, therefore, grateful to him for leading the way. In his judgment which I have read in draft, he so fully sets out the relevant material that I am happy to adopt it and I need not add to this lengthy judgment by needless repetition. In the light of his full exposition of the law, I can state the gist of my reasons for agreeing with him quite shortly.

2. Is there some immunity for doctors?

Archbold 2000: Criminal Pleading Evidence & Practice, para. 19-38, states that:-

"Bona fide medical or surgical treatment is not "unlawful" and therefore death resulting therefrom does not amount to murder, even though death or serious injury is foreseen as a probable consequence. Nor does it amount to manslaughter, unless the person giving the treatment has been guilty of "gross negligence"".

No authority is given for this sweeping statement. It is true that in Gillick Lord Scarman said at p. 190:-

"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."

Lord Mustill speaks of it in Bland. Yet hanging over Bland is the spectre of murder. To have crossed the Rubicon would have been to murder. I, therefore, approach the question of lawfulness of the proposed separation on the basis that, whatever immunity doctors do enjoy, they have no complete immunity. I have to be satisfied that in this case they will not be guilty of unlawfully killing Mary by active intervention - and perhaps of unlawfully killing Jodie by omitting to act in her interests if there is a duty upon them to do so.

3. Murder.

Stripping away the inessential elements, for present purposes I have to examine whether there would be (1) an unlawful (2) killing of a person (3) with intent to kill or cause grievous bodily harm. Each of those elements calls for consideration.

4. Intention.

4.1 The proper test

It is sufficient for present purposes simply to note that, despite several attempts by the House of Lords to clarify the mens rea required to establish murder, "the law of murder was in a state of disarray": per Lord Steyn in Reg. v Woollin [1999] 1 A.C. 82, 91 A. Woollin is binding upon us and, despite Mr Owen Q.C.'s submission that Article 2 of the European Human Rights Convention will require us to recast the definition, I do not propose to do so. Law which has long needed to be settled should be left to settle. The test I have to set myself is that established by that case. I have to ask myself whether I am satisfied that the doctors recognise that death or serious harm will be virtually certain (barring some unforeseen intervention) to result from carrying out this operation. If so, the doctors intend to kill or to do that serious harm even though they may not have any desire to achieve that result. It is common ground that they appreciate that death to Mary would result from the severance of the common aorta. Unpalatable though it may be - and Mr Whitfield contends it is - to stigmatise the doctors with "murderous intent", that is what in law they will have if they perform the operation and Mary dies as a result.

4.2 The doctrine of double effect

This teaches us that an act which produces a bad effect is nevertheless morally permissible if the action is good in itself, the intention is solely to produce the good effect, the good effect is not produced through the bad effect and there is sufficient reason to permit the bad effect. It may be difficult to reconcile with Woollin. Nevertheless it seems to enjoy some approval from Lord Donaldson M.R.- see In re J at p. 46C – and Lord Goff – see Bland p. 867C. I can readily see how the doctrine works when doctors are treating one patient administering pain-killing drugs for the sole good purpose of relieving pain, yet appreciating the bad side-effect that it will hasten the patient's death. I simply fail to see how it can apply here where the side-effect to the good cure for Jodie is another patient's, Mary's, death, and when the treatment cannot have been undertaken to effect any benefit for Mary.

5. Causation.

I appreciate, of course, that in one sense Mary will die because she is simply incapable of living. She is not a viable child. But as she is alive at the time of the operation is undertaken, the operation serves to hasten her inevitable death just as the lethal injection accelerates the death of a patient at a terminal stage. So I do not see how, in law, the severance of the artery will not be treated as a cause of her death.

6. Kills.

I have already explained why the operation will be an active invasion of Mary's body and by that act the doctors will kill her.

I seem to be the lone voice raising the unpalatable possibility that the doctors and even - though given the horror of their predicament it is anathema to contemplate it - the parents might kill Jodie if they fail to save her life by carrying out the operation to separate her from Mary. Although I recoil at the very notion that these good people could ever be guilty of murder, I am bound to ask why the law will not hold that the doctors and the parents have come under a duty to Jodie. If the operation is in her interests the parents must consent for their duty is to act consistent with her best interests: see Lord Scarman in Gillick in the passages I have already set out. I know there is a huge chasm in turpitude between these stricken parents and the wretched parents in R v Gibbins and Proctor (1918) 13 Cr. App. R. 134 who starved their child to death. Nevertheless I am bound to wonder whether there is strictly any difference in the application of the principle. They know they can save her. They appreciate she will die if not separated from her twin. Is there any defence to a charge of cruelty under section 1 of the Children and Young Persons Act 1933 in the light of the clarification of the law given by Reg. v Sheppard [1981] A.C.395 which in turn throws doubt on the correctness of Oakey v Jackson [1914] 1 K.B. 216? Would it not be manslaughter if Jodie died though that neglect? I ask these insensitive questions not to heap blame on the parents. No prosecutor would dream of prosecuting. The sole purpose of the enquiry is to establish whether either or both parents and doctors have come under a legal duty to Jodie, as I conclude they each have, to procure and to carry out the operation which will save her life. If so then performance of their duty to Jodie is irreconcilable with the performance of their duty to Mary. Certainly it seems to me that if this court were to give permission for the operation to take place, then a legal duty would be imposed on the doctors to treat their patient in her best interests, i.e. to operate upon her. Failure to do so is a breach of their duty. To omit to act when under a duty to do so may be a culpable omission. Death to Jodie is virtually certain to follow (barring some unforeseen intervention). Why is this not killing Jodie?

7. Unlawfully.

7.1 The search for settled principle

The search for settled principle is difficult where the law is as uncertain in this area as Brooke L.J.'s masterly analysis has shown it to be. Doing the best I can, I have come to these conclusions.

7.2 Necessity

Necessity in the Dudley and Stephens sense arises where A. kills B. to save his own life. The threat to A.'s life is posed by the circumstances, rather than an act of threat by B. on A. in conventional self-defence terms.

7.3 Duress

Similar considerations apply to duress. There is, of course, a difference between them but as Lord Hailsham of St. Marylebone L.C. said in Reg. v Howe [1987] 1 A.C. 417, 427:-

"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 threat. I cannot see that there is any way in which a person of ordinary fortitude can be excused from one type of pressure on his will rather than the other."

 

7.4 The policy of the law

The policy of the law is to prevent A. being judge in his own cause of the value of his life over B.'s life or his loved one C.'s life, and then being executioner as well. The policy of the law was expressed in similar terms in Hale's Pleas of the Crown (1736), Vol. 1, p. 51, and Blackstone, Commentaries on the Laws of England (1857 Ed.) Vol. 4, p. 28. Blackstone wrote that a man under duress "ought rather to die himself than escape by the murder of an innocent". The sanctity of life and the inherent equality of all life prevails. Several passages in Howe show this. Lord Hailsham said:-

"This brings me back to the question of principle. I begin by affirming that, while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure, and in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility": P. 428 E.

"Other considerations necessarily arise where the choice is between the threat of death or a fortiori of serious injury and deliberately taking an innocent life. In such a case a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. In such a case a man cannot claim he is choosing the lesser of two evils. Instead he is embracing the cognate but morally disreputable principle that the end justifies the means": p. 431 C.

"It may well be thought that the loss of a clear right to a defence justifying or excusing the deliberate taking of an innocent life in order to emphasise to all the sanctity of a human life is not an excessive price to pay in the light of these mechanisms": p. 431 F.

Lord MacKay of Clashfern was equally emphatic:-

"It seems to me plain that the reason that it was for so long stated by writers of authority that the defence of duress was not available in a charge of murder was because of the supreme importance that the law afforded to the protection of human life and that it seemed repugnant that the law should recognise in any individual in any circumstances, however extreme, the right to choose that one innocent person should be killed rather than another. In my opinion, that is the question which we still must face. Is it right that the law should confer this right in any circumstances, however extreme?"

The question posed by Lord MacKay is the crucial question to resolve in this case. To arrive at the right answer, it is in my view necessary to state two important features of this case.

7.5 A legal duty?

The first important feature is that the doctors cannot be denied a right of choice if they are under a duty to choose. They are under a duty to Mary not to operate because it will kill Mary, but they are under a duty to Jodie to operate because not to do so will kill her. It is important to stress that it makes no difference whether the killing is by act or by omission. That is a distinction without a difference: see Lord Lowry in Bland at p. 877. There are similar opinions in the other speeches. Lord Browne-Wilkinson said at p. 885 G:-

"Finally, 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 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 ..."

Lord Mustill said at p. 887 C:-

"The acute unease which I feel by adopting this way (drawing a crucial distinction between acts and omissions) 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."

The Archbishop would agree. He tells us that:-

"To aim at ending an innocent person's life is just as wrong when one does it by omission as when one does it by a positive act."

7.6 The effect of a conflict of duty

What then is the position where there is a conflict of duty? In Pleas of the Crown(1803) Vol. 1, Chap. 5, para 7, East explained that "justification is founded upon some positive duty: excuse is due to human infirmity." Much later, Wilson J., speaking only for herself, gave a similar explanation in Perka v The Queen 13 D.L.R. (4th) 1, 36:-

"... The ethical considerations of the "charitable and the good" must be kept analytically distinct from duties imposed by law. Accordingly, where necessity is invoked 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."

So far I agree. But she goes on to say:-

"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 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."

She is adhering to the sanctity of life principle. What are the doctors to do if the law imposes upon them a duty which they cannot perform without being in breach of Mary's right to life if at the same time the respecting of her right puts them in breach of the equally serious duty of respecting Jodie's right to life? A resort to a sanctity of life argument does not enable both rights to receive the equal protection the doctrine is supposed to provide each of them equally. In those circumstances it seems to me that the law must allow an escape through choosing the lesser of the two evils. The law cannot say, "heads I win, tails you lose". Faced as they are with an apparently irreconcilable conflict, 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 each child. The doctors must be given the same freedom of choice as the court has given itself and the doctors must make that choice along the same lines as the court has done, giving the sanctity of life principle its place in the balancing exercise that has to be undertaken. The respect the law must have for the right to life of each must go in the scales and weigh equally but other factors have to go in the scales as well. For the same reasons that led to my concluding that consent should be given to operate so the conclusion has to be that the carrying out of the operation will be justified as the lesser evil and no unlawful act would be committed.

7.7 Offending the sanctity of life principle

The second reason why the right of choice should be given to the doctors is that the proposed operation would not in any event offend the sanctity of life principle. That principle may be expressed in different ways but they all amount to the same thing. Some might say that it demands that each life is to be protected from unjust attack. Some might say as the joint statement by the Anglican and Roman Catholic bishops did in the aftermath of the Bland judgment 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 the legitimate defence of others. The Archbishop defines it in terms that human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission. I have added the emphases. 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. That is the effect of the incontrovertible medical evidence and it is common ground in the case. Mary uses Jodie's heart and lungs to receive and use Jodie's oxygenated blood. This will cause Jodie's heart to fail and cause Jodie's death as surely as a slow drip of poison. How can it be just that Jodie should be required to tolerate that state of affairs? One does not need to label Mary with the American terminology which would paint her to be "an unjust aggressor", which I feel is wholly inappropriate language for the sad and helpless position in which Mary finds herself. I have no difficulty in agreeing that this unique happening cannot be said to be unlawful. But it does not have to be unlawful. The six year boy indiscriminately shooting all and sundry in the school playground is not acting unlawfully for he is too young for his acts to be so classified. But is he "innocent" within the moral meaning of that word as used by the Archbishop? I am not qualified to answer that moral question because, despite an assertion –or was it an aspersion? – by a member of the Bar in a letter to The Times that we, the judges, are proclaiming some moral superiority in this case, I for my part would defer any opinion as to a child's innocence to the Archbishop for that is his territory. If I had to hazard a guess, I would venture the tentative view that the child is not morally innocent. What I am, however, competent to say is that in law killing that six year old boy in self-defence of others would be fully justified and the killing would not be unlawful. I can see no difference in essence between that resort to legitimate 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. The availability of such a plea of quasi self-defence, modified to meet the quite exceptional circumstances nature has inflicted on the twins, makes intervention by the doctors lawful.

8. Conclusion.

For these reasons, very shortly expressed, I conclude that the operation which I would permit can be lawfully carried out.

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