Jodie and Mary were conjoined twins. On appeal, the Court of Appeal was asked to determine whetherit would be lawful for surgeons to operate on the pair to separate them.

Authors Avatar

                Jodie and Mary were conjoined twins. On appeal, the Court of Appeal was asked to determine whether

                it would be lawful for surgeons to operate on the pair to separate them. The implications of separation

                were that M would certainly die within minutes and that J would most probably live. On the other hand,

                if the twins were not separated ultimately both would die within a matter of months.

                M's own heart and lungs were inadequate to sustain M's life. While joined to J, M survived only by

                relying on J's heart to pump the blood oxygenated by J through both twins' bodies. Sustaining both lives

                was imposing an excessive strain on J's heart. It was common ground that J's heart would fail within

                approximately 3-6 months. M's death would inevitably follow J's.

                On these facts, the Court of Appeal held that it would be lawful (though not required) for surgeons to

                carry out the operation. To the extent that any general proposition can be extracted from the decision,

                its gist seems to be that a defence of necessity can extend to lethal acts undertaken in order to negate a

                threat to life even where that threat is an innocent one. Hence, on the best view of the law after Re A,

                the story told of the petrified passenger during the sinking of the Herald of Free Enterprise, who had

                to be pushed off a ladder (and who apparently then drowned) in order that others may survive, may now

                disclose an appropriate case for the necessity defence. [See S&S p. 625.]

                The case establishes few if any general propositions of law. Even though the ruling of the Court was

                unanimous, each of the three judgments adopts different and inconsistent reasoning. There is, at least,

                welcome agreement that Johnson J erred at first instance in holding that the surgical intervention would

                be lawful because it would be an omission (a withdrawal of the blood supply to M) rather than a positive

                act of killing. [For criticism of similar reasoning in Airedale NHS Trust v. Bland [1993] AC 789, see

                S&S p. 70.] The Court of Appeal rightly held that their decision had to be made on the basis that the

                surgery, while undertaken in order to save J, would constitute a positive act of killing M.

                On what basis, then, could the killing of M to save J be justified and lawful? The difficulty here is posed

                by the rule in Dudley and Stephens(1884) 14 QBD 273 that necessity is not available as a defence to

                murder. [See S&S p. 632-3.] Prima facie, the surgery would be murder of M, since both the actus reus

                and mens rea elements of murder would be present (more on which below). Thus the challenge for the

                Court of Appeal was to circumnavigate, without undermining, the rule in Dudley and Stephens. Each

                judge sought to achieve this by a different route.

                Bringing the case within self-defence: Ward LJ's judgment

                Ward LJ evaded the bar to pleading necessity in two ways. His primary line of reasoning involved

                characterising the case as one of (third party) self-defence, a criminal law defence that definitely is

                available to murder. In his Lordship's analysis, the key point of the case is that, albeit through no fault of

                her own, M was killing J. What is distinctive about the justifying defence of self-defence is that D acts

                to avoid a threat from P, not by transferring the harm in some way to another person (as classically

                occurs in duress), but by negating that threat directly at source. In Re A, J's life was being threatened.

Join now!

                Therefore, J (or someone acting on her behalf) would be justified when acting in order to negate that

                threat, even though a consequence of so doing was that the person who was the source of that threat

                would die.

                It is, of course, odd to think of this as a case of self-defence, since M can hardly be described as an


This is a preview of the whole essay