Tracey Steel ICT Project

The Defence of Necessity

Introduction

The defence of necessity is only available for the defendant who has committed a
crime to avoid a greater evil. This paper will outline the rationale through R v
Dudley & Stephens and explain why this defence is only available in exceptional
circumstances. In addition, the rationale will be extended as a template, and
tested against a set of circumstances in a modern day situation.

Regina v Dudley & Stephens (1884)1

The most famous British case documented to illustrate a Defence of Necessity,

which established a precedent in English law, is R v Dudley & Stephens (1884).2
The case came before the Queens Bench after two surviving crew members
claimed that the death of, Richard Parker, their cabin boy, was necessary for
their own survival, and claimed the defence of necessity against the charge of
homicide.
The four man crew agreed to sail the 52ft
English yacht, Mignonette, to Australia.
Captain Tom Dudley; first mate Edwin
Stephens; Edmund Brooks; and the 17
year old cabin boy, Richard Parker set sail
from Southampton to Sidney 19th May
1884. The 16 year old cruiser was ill
equipped3 for the 15,000 mile journey, and
the crew abandoned ship after a wave
damaged the vessels bulwarks4 on the 5th
July. The 13ft life boat was quickly
boarded, with few supplies, as the
Mignonette sank. The men survived on a
couple of tins of turnips for a few days until
they caught a turtle, which further
sustained them.
5
Sketch of the Mignonette by Tom Dudley
By the 17th July there was no food or water source available. Parker quickly
became ill after drinking seawater and was in a coma by 24th July. At some stage
the men discussed drawing lots for survival; the loser would die in order to feed
the remaining crew members. No decision was made by Captain Dudley, but it
soon became apparent that Parker was going to die. Dudley and Stephens finally
agreed to kill the boy, and although Brooks did not take part in this act, he was

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eager for his share of the boy’s flesh and blood. The three surviving crew
members were rescued four days after
the death of Parker. Tom Dudley and
Edwin Stephens were charged with
murder. The men claimed the defence
of necessity against this charge and
argued that this practice was
commonplace under such extreme
circumstances.
6
Photograph of lifeboat exhibited at Falmouth

Events Time Line

th th th th th th th th st rd th th
19 5 7 9 13 15 17 20 21 23 25 29
July
May July July July July July July July July July July

Parker ill from

Drawing lots

drinking Sea
Mignonette

Mignonette

Discussed

intensified

In coma
Opened
set sail

Rescue
Caught
turnips

Debate

Parker

Parker
water

killed
turtle

drink
sank

food
No

No

Cannibalism
Cannibalism was a socially accepted
practice among seamen faced with
starvation and death7, as depicted by
the painting by Theodore Gericault,
The Raft of Medusa, inspired by the
cannibalism that took place after the
French naval frigate; Medusa8 was
abandoned by her crew in 1816.
Similarly, the whale ship Essex, was
destroyed and sank after a whale
attack in 1821. The surviving crew
were forced to eat their dead and
9
later drew lots in order to survive. The The Raft of Medusa
first mate, Owen Chase, later wrote detailed manuscripts of the tragedy10, which
were passed by Chase’s son, to another young whaler, Herman Melville. Melville
was so inspired by the tale he produced his greatest work, Moby Dick.11

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The Verdict
The defence of necessity is only available for the defendant who has committed a
crime to avoid a greater evil, and adopts the rationale that:

1. it is unjust to punish a defendant for doing something that a reasonable

person would have done in the same circumstances; and
2. the law should encourage a defendant to choose the lesser and avoid the
greater evil on the grounds of public policy.12

The court in Dudley & Stephens discussed the matter at length and concluded
that there was no common law defence of necessity to a charge of murder, either
on the basis of legal precedent or the basis of ethics and morality, and concluded
that:

‘To preserve one's life is generally speaking a duty, but it may

be the plainest and the highest duty to sacrifice it. War is full
of instances in which it is a man's duty not to live, but to die.
The duty, in case of shipwreck, of a captain to his crew, of the
crew to the passengers, of soldiers to women and children…
these duties impose on men the moral necessity, not of the
preservation, but of the sacrifice of their lives for others, from
which in no country, least of all, it is to be hoped, in England,
will men ever shrink…it is enough in a Christian country to
remind ourselves of the Great Example [Jesus Christ] whom
we profess to follow.’13

The defendants were sentenced to death. However, Queen Victoria, utilised her
Royal Prerogative to spare the lives of these men, and sentenced them to a six
months in prison. This resolved the case to suit all perspectives. The court was
perceived as strictly upholding the law, which also reinforced the Christian
principles on which the law is based. In addition, the numerous sympathisers of
Dudley and Stephens were also pacified to avoid social unrest, when the
monarch showed understanding and leniency towards the crew of the Mignonette
because of the dreadful mental, emotional and physical dilemmas they had faced
during their ordeal at sea.

A Modern Dilemma
Despite the rationale outlining the essence of the defence, courts have
historically been reluctant to recognise necessity as legal justification for
committing murder, as illustrated above, however, in Re A (2000), the court of
appeal held that the termination of the life of a conjoined twin would not amount
to murder on the grounds of necessity, given that, without this sacrifice, the life of
the stronger twin could not be saved. In principle it is difficult to see why this
should not be equally correct in other homicide situations.14 For example, an
incident occurred on a climbing expedition to the Peruvian Andes, which not only

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sparked furious debate and criticism from the mountaineering community, but
also questioned whether the defence of necessity could have been depended
upon given a varying outcome.

Touching the Void15

In 1985, Joe Simpson and Simon Yates climbed the 4,500ft West Face of
21,000ft Siula Grande, one of the most formidable mountains of the Peruvian
Andes, which had so far, defeated all attempts to the summit. Simpson and
Yates reached the peak successfully, but disaster struck on their descent at
19,000ft, when after a slow
start, Joe fell and broke his
leg. Both men understood
the life threatening
implications of the injury, but
their friendship was such
that Yates decided to do his
best to get Simpson home.
The team continued the
difficult decent despite Joe’s
agony. Yates planned to
abseiled his wounded friend
down the mountain. Simon
attached a rope to Joe and
lowered him down the
16
Siula Grande
glazier 300 foot at a time. Each decent involved severe agony for Joe, as he was
lowered as swiftly as possible due to the time constraints dictated to the men
by the ruthless and relentlessly brutal weather conditions. As soon as the rope
was extended to its full capacity, Joe secured his footing on his good leg, leaving
the rope slack and indicating his safety, Yates would descend to meet his
companion and start the process again. Things went well until Joe slid over an
incline which left him hanging in mid air. Above him, Simon had no idea what had
happened, and suspected that Joe’s injuries were more
severe than initially considered, and he thought that
Joe may have become unconscious with the pain, or
worse, was dead. Neither man could communicate with
the other, and the weather changed for the worse.
Suffering from frostbite in four fingers and one thumb,
Simon held the rope which held his friend for many
hours through a harsh snow storm. After much
deliberation Simon realised that he had to act or both
men would die, and he cut the rope. Joe plummeted
into the unknown below, landing on a ledge in a
massive crevasse. Simon climbed down to find his
friend, but Joe was hidden in the abyss. Simon was

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forced to abandon all hope and continued his torturous descent to base camp
alone. Miraculously, and in spite of the odds, Joe Simpson found a way out of
the crevasse and crawled back to based camp just hours before the rest of the
group had planned to leave. Joe has made a full recovery.

Conclusion

Some would argue that there was no decision to be made; with the rope
representing the powerful symbol of trust and friendship, cutting it should never
have been an option. Others consider the act a simple matter of survival,
something that Yates was forced to do under extreme circumstances.17A
decision, given the same circumstances, that Simpson himself would have made.
Fortunately, both men survived the ordeal and remain friends, however, if Simon
had returned from Peru without his companion, and he had documented an
accurate account of the events that took place, what would his fate have been?

In such extreme and unusual circumstances, would Simon be answering a

murder charge and, if so, could he rely on necessity as his defence for this
crime? Clearly, if Joe had fallen to his death, his friend would have been
responsible for cutting the rope and, therefore, guilty of causing his death.
However, does it automatically follow that he is guilty of murder. Given the legal
exploration in R v Dudley & Stephens, it is accepted that to take someone else’s
life to preserve your own, can only be regarded as murder, however, the rule in
Re A (2000) offers an alternative, which could be relevant to the Siula Grande
scenario. In Re A, the already dying twin, that could not be saved, was
terminated to save the stronger twin. Given that Simon could do no more to
assist Joe, perhaps it was reasonable and fair for him to cut to rope and preserve
his own life. The result of Simon not cutting the rope would have been the loss of
two lives. Therefore, if the demise of the rope had resulted in Joe’s death, surely
the law would have rejoiced in the survival of at least one man.

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1
Full text of judgment www.justis.com/data-coverage/iclr-bqb14040.aspx
2
Mallin, M. G. (1967), "In warm blood: Some historical and procedural aspects of Regina v. Dudley and
Stephens", University of Chicago Law Review 34: 387–407, doi:10.2307/1598938
3
Simpson, A. W. B. (1984), Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the
Mignonette and the Strange Legal Proceedings to Which It Gave Rise, Chicago: University of Chicago
Press. pp. 50–53
4
Protective sides of the yacht, that prevent flooding and sinking
5
http://en.wikipedia.org/wiki/Mignonette_%28yacht%29
6
http://en.wikipedia.org/wiki/Mignonette_%28yacht%29
7
Essex 1820 http://en.wikipedia.org/wiki/Essex_(whaleship);
8
The Raft of Medusa 1818 http://en.wikipedia.org/wiki/The_Raft_of_the_Medusa
9
http://en.wikipedia.org/wiki/Raft_of_Medusa
10
Narrative of the Most Extra-Ordinary and Distressing Shipwreck of the Whaleship Essex, published 1821.
http://www.bbc.co.uk/dna/h2g2/alabaster/A671492
11
The Wreck of the Whaleship Essex http://www.bbc.co.uk/dna/h2g2/alabaster/A671492
12
Geary, R. (2002). Understanding Criminal Law. London:Cavendish. pp114-115
13
R v. Dudley and Stephens [1884] 14 QBD 273 DC.
14
Greary, R. (2002). Understanding Criminal Law. London:Cavendish. pp114-115
15
Simpson, J. (1997). Touching the Void. London:Vintage.
16
Creative commons search http://www.flickr.com/photos/jakegordon/4433877
http://www.flickr.com/photos/jakegordon/4433905/in/set-111651/
17
Simpson, J. (1997). Touching the Void. London:Vintage.