MY FAVOURITE CASESenator Ivana Bacik BL, Reid Professor of Law, Trinity College
What is your favourite case?
The British case of R v. Dudley and Stephens (1884), which concerned the trial of two sailors, Thomas Dudley and Edwin Stephens, for the murder of a cabin boy Richard Parker.
The sailors involved were shipwrecked in a storm in July 1884, and were cast away on the high seas, 1,600 miles from the Cape of Good Hope. They had to put away in an open lifeboat with no fresh water, and no food except for two tins of turnips. They consumed a turtle, and caught rainwater from time to time in their oilskin capes.
However, on the 18th day, when they had been seven days without food, and five without water, Dudley and Stephens proposed to a third sailor, Brooks, that somebody should be sacrificed to save the rest. Brooks dissented. The next day, Dudley proposed that the cabin boy should be killed. Parker was between 17 and 18 and the weakest of the four; he was lying on the bottom of the boat unable to make resistance. Brooks again dissented. Regardless, Dudley offered up a prayer asking for forgiveness and then knifed the boy, and the three men fed upon Parker’s body and blood for days. Four days later, they were picked up by a passing vessel.
When they returned to England, Dudley and Stephens (but not Brooks) were charged with murder. In what was known as a “special verdict”, the jury set out the facts of the case. They found that there appeared to Dudley and Stephens every probability that unless they killed the boy, or one of themselves, they would die of starvation. The jury showed some sympathy but couldn’t say whether or not their findings of fact should give rise to a verdict of murder.
The trial judge then asked the High Court to make a judgment on the law based on these facts. Lord Coleridge delivered the decision of the Court, ultimately saying that the two men were guilty of murder, as necessity was no defence. Coleridge said that if necessity was allowed as a defence for serious crimes, this principal “might be made the legal cloak for unbridled passion and atrocious crime.” The two sailors were sentenced to death. However, this was afterwards commuted by the Crown to six months’ imprisonment, due to a public outcry.
There has been some interesting historical legal research as to how extensive the use of the mercy prerogative was. While an awful lot of people were sentenced to death in the 18th and 19th century, it was quite common practice to commute the sentence to life imprisonment.
Why is it your favourite case?
I deliberately use this case early on in criminal law courses for first years because the facts are immediately very gripping, it’s quite a short judgment and it generates a debate. Students sympathise entirely with the cabin boy.
Before we even get into the technical aspects of the case, we look at abstract ideas such as the connection between law and morality. In one passage in the judgment, Coleridge says: “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.”
Coleridge also uses lovely flourishes of rhetoric, saying that “to preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it”. He goes on to express the hope that in no country, “least of all, it is to hoped, in England”, would men ever shrink from this duty to sacrifice their lives for others, adding that there is no absolute or unqualified necessity to preserve one’s own life.
The idea of the noble Englishman who must sacrifice his life is hard to empathise with now, but the overblown language really captures the mood of the time. It’s very Victorian – that’s the beauty of the case.
Does the issue of necessity as a defence ever arise in modern-day cases?
In England in 1971, Lord Denning made a very similar judgment in the case of London Borough of Southwark v Williams, which concerned squatters. In his famous judgment, he said that if homelessness were once admitted as a defence to trespass, no one’s house would be safe. “Necessity would open a door no man could shut,” he said. “ . . . the courts must refuse to admit the plea of necessity to the hungry and the homeless and trust that their distress will be relieved by the charitable and good.”
This harsh judgment was subject to a lot of criticism. Left-wing critics felt it was really about the defence of private property.
Usually the question of whether necessity can be a defence arises in very extreme situations.
In conversation with Caroline Madden