In the case of Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961, the court considered inter alia the law on the unlawful killing and the defence of necessity. Explain the reason for the dcision.

Hannah Nicholson Criminal Law Assignment

(Group B)

In the case of Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961, the court considered inter alia the law on the unlawful killing and the defence of necessity. With particular reference to the leading judgements regarding criminal law, explain the key principles and the reason for the decision.

The recent case of Re A is a complicated case in which several key principles of criminal law have to be discussed. Many conflicting issues had to be considered by the three justices; Ward, Brooke and Robert Walker LJJ. These principles include; the sanctity of life/right to life, unlawful killing/murder, duties of care, intention and necessity. As well as case law, statute also exists within the case.

The case of Re A is concerned with the fate of a pair of conjoined or ‘Siamese’ baby twins; Jodie and Mary. The appeal from the girls’ parents was allowed after a previous judgement by Johnson J granted an operation to separate the twins, an operation which would almost certainly provide Jodie with a normal, healthy life but would definitely result in the death of her sister Mary. It was stated that if the twins were not separated, then they would both die in three to six months, however if they were separated, Mary would die immediately but Jodie could go on to live as a regular individual. Johnson J’s judgement was questioned in the course of the appeal and this shall be discussed later. In regards to the fact that Mary would certainly die as a result of the proposed operation; the vital questions that had to be answered were;

“– Whether the court should permit operation – Whether operation would be lawful –”

The first points that need to be covered are the principles of the sanctity of life and the right to life. The sanctity of life principle stems from religion and was commented on by the Archbishop of Westminster in his written submission to the court; it follows the concept that God created all life and so it is to be respected and cherished. This theory has then led to the sanctity of life being protected in an official capacity by English Law itself. The principle is further supported by the Human Rights Act 1998; enacted to incorporate the European Convention on Human Rights into English law. Schedule 1, Article 2 of the 1998 Act outlines the concept of the ‘right to life’, it states that everyone’s right to life is protected by the law and as a result, no one can be intentionally deprived of this right. Brooke LJ shows the significance of this right during his judgement;

“The right to life is one of the most important values protected by our law.”

The justices also had to consider the law of murder alongside the principle of the right to life. The reason for this is the question of criminal liability of doctors; can they be held responsible if a patient dies during an operation? In his judgement, Ward LJ uses the following statement to answer this question;

“Bona fide medical or surgical treatment is not “unlawful” and therefore death resulting therefrom does not amount to murder,”

As the text suggests, this application of ...

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“The right to life is one of the most important values protected by our law.”

“Bona fide medical or surgical treatment is not “unlawful” and therefore death resulting therefrom does not amount to murder,”

As the text suggests, this application of immunity for medics only applies in a regular scenario; Ward addresses the fact that Mary and Jodie’s operation would not be a commonplace procedure, not only due to the rareness of the situation of conjoined twins, but because the doctors are already fully aware that Mary will die as a result of the separation. Therefore, in the case of Re A, the involved medics can be held liable if Mary dies, so the law of murder needed to be looked at to ascertain whether this offence can be committed in this case.

Brooke LJ addresses the law of murder well in his judgement; he refers to the Archbold definition;

“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…”

From quoting the above definition, Brooke LJ goes on to dismantle it to identify the individual areas of the law of murder and how they apply to the case of Re A;

“The words or phrases in the Archbold definition, which need to be explored in the present case, are the words “unlawful”, “kills”, “any reasonable creature” and “with intent to kill”.”

All three judges agreed that Mary was to be considered a reasonable creature, Brooke LJ comments on the presence of medical advances which mean that ‘Siamese’ twins are no longer referred to as ‘monstrous’ and are therefore reasonable creatures in being;

“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.”

With the unanimous conclusion that Mary was a reasonable creature came the complication that she was now capable of being murdered, and therefore, if the doctors were to proceed with the proposed operation, they could be held liable for her death. The next principle addressed by Brooke LJ was the meaning of the word ‘kills’. This comes in reference to the concepts of acts and omissions. Brooke, Ward and Walker LJJ all refer to this matter and in particular, with reference to the case of Airedale NHS Trust v Bland [1993] 1 All ER 821. The court in Bland ruled that the doctors would be free from criminal liability if they discontinued the feeding because it would be an omission, not an act. With the law of murder requiring the accused to carry out a positive act. The withdrawal of treatment was seen as an omission and so not murder. In the original hearing of Re A, Johnson J used this principle to suggest that the Re A operation would be an omission because it involved withdrawing Mary’s blood supply. However, at appeal, Brooke, Ward and Walker LJJ all agreed that the operation could never be seen as an omission due to the invasive nature of the surgery that would have to be carried out on both twins.

Mens rea is also required for murder, e.g. intention, Brooke LJ commented on this principle;

“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 case of R v Woollin [1998] 4 All ER 103 is the authoritative case on intention. In Woollin, the test of virtual certainty is developed from the principles of R v Nedrick . In Woollin, a father threw his baby son against a wall which resulted in the baby’s death. Despite the father having no desire to kill his son, it was established that it was a virtual certainty that this result would occur and so the father was convicted of murder. With reference to this case, the justices in Re A were shown that even though the doctors would not desire the death of Mary, they were sure it would take place as a result of their actions and so were still responsible for it.

Having ascertained that both twins were entitled to their right to life, it was stated that the twins’ doctors now faced a conflict of duties. The medics owed both Jodie and Mary equal duties of care but how could the doctors do what was in Jodie’s best interest and what was in Mary’s best interests? The judges admitted that Jodie’s best interests had to be for the operation to take place so that she may lead a normal life, but Mary’s best interests would be for the operation not to take place as she would then have a longer life, even if it was by just 3-6 months. Because of this, the court decided to carry out a balancing exercise, to weigh up each twins situation and then act on the least detrimental. By doing this, the operation could be made lawful as the doctors would be carrying out the lesser of two evils.

Finally, the reasoning behind the final decision by the court in Re A, needs to be discussed. All three agreed judges agreed on the basic rule of the balancing exercise and the lesser of two evils approach. However, Ward LJ’s reasoning seemed to lean towards the concept of quasi self-defence. He stated how, even though Mary could not be referred to as an ‘unjust aggressor’ she was still a threat to Jodie’s life, and therefore with the outline of the concept of self defence being that there is an active threat by B on A and A acts to protect himself, this principle is applied by Ward LJ in the theory that the doctors could act in quasi self defence to save Jodie from Mary.

Next is Brooke LJ’s theory on necessity. He states a change to the doctrine of necessity as the reason to allow the operation. Reference to the case of Dudley and Stephens highlights the precedent in law that necessity cannot be used as a defence to murder, however, the court for Re A uses it as just that. They were able to do this because of the lesser of two evils principle which they already had in place, the very doctrine of necessity is based on the choice of one kind of evil over another. Brooke LJ was able to show that the requirements for the doctrine of necessity were filled by Re A and that the facts of the case were distinguished from Dudley and Stephens.

“An act which would otherwise be a crime may in some cases be excused if the person accused can show it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have been inflicted upon him or upon others whom he was bound to protect from inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted was not disproportionate to the evil avoided…”

By adhering to this definition, the chance for Jodie to lead a full life outweighed allowing Mary to live for a few more months. Brooke LJ is quick to state that Re A is a unique case and that Dudley and Stephens remains the authority on necessity as the material facts of the cases are so different.

Lastly, the judgement of Robert Walker LJ needs to be considered. Although he agrees with his colleagues on the application of the doctrine of necessity, he also revisits the question of whether the operation would be in Mary’s best interests. The conclusion that it would be was arrived at by the previous Johnson J, but was dismissed by Ward and Brooke LJJ, however, Walker LJ applies the question of bodily integrity to the question of Mary’s best interests and suggests that as conjoined twins, both children have been denied the whole bodily integrity that they are entitled to by nature. Because of this, Walker LJ suggests that;

“The operation would give [Mary], even in death, bodily integrity as a human being.”

Therefore, by proceeding with the separation, even though she would die, Mary would finally be given the bodily integrity which is her right whereas if both twins were left to die in the following three to six months, this integrity would never be granted to either of them.

In conclusion, it is clear that, although varying routes were taken to get there, the same decision was eventually reached by Ward, Brooke and Walker LJJ that the appeal should be dismissed and that the operation to separate Mary and Jodie could go ahead lawfully. It could also be stated that the fact that each justice did explore a slightly different perspective on the case and still come to the same conclusion, strengthens the correctness of the overall judgement as it gives it several different reasons to be correct.

Bibliography

Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961

Airedale NHS Trust v Bland [1993] 1 All ER 821

R v Dudley and Stephen (1884-5) 14 QBD 273

R v Woollin [1998] 4 All ER 103

Bloy, D. Lanser, D. Molan, M: Modern Criminal Law; 5th ed, 2003. Cavendish

Publishing Limited.

Curzon, L. B. Dictionary of Law; 6th ed, 2002. Pearson/Longman.

Glazebrook, P. R. Statues on Criminal Law; 2003-2004. Blackstone’s.

Heaton, R. Criminal Law; 3rd ed, 2001. Blackstone’s.

Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961 at pg 961.

Archbishop of Westminster, Re A, at pg 1000.

Exceptions do exist to the general rule that no one can be deprived of their right to life and these are stated in the full Article, however, these exceptions do not apply to Jodie and Mary’s situation.

per Brooke LJ, Re A, at pg 1024.

per Ward LJ, Re A, at pg 1011.

Archbold’s, Criminal Pleading, Evidence and Practice (2000 ed) pg 1630.

Archbold’s, Criminal Pleading, Evidence and Practice (2000 ed) pg 1622.

per Brooke LJ, Re A, at pg 1023.

per Brooke LJ, Re A, at pg 1026.

Law Commission’s 1993 report on; Offences Against the Person and General Principles. (Law Com No 218 (1993))

R v Nedrick [1986] 3 All ER 1; The accused poured paraffin through a woman’s door and then set fire to it. In the resultant blaze, the woman’s child died. Nedrick applied to indirect intent, in that he did not intent to kill the child, but his actions were dangerous and could be reasonably seen to be able to produce such an effect.

R v Dudley and Stephens [1884] 14 QBD 273.

Sir James Stephen, Digest of the Criminal Law (4th ed, 1887) pg 9.

per Walker LJ, Re A, pg 1070.