Two days ago I published a short blog [“The Conjoined Twins case”], which was based on a talk I had given in Washington DC in 2005 to a group of senior judges from the common law world. I am now more familiar with the capabilities of this technology, and I am therefore publishing this talk in full for the first time. Although it was written for a judicial audience, I believe that a wider readership in cyberspace may well be interested, too.
A Life and Death Issue in English Law
A talk delivered by Sir Henry Brooke during the Seventh Worldwide Common Law Judiciary Conference in Washington DC, 1 June 2005
This paper revolves around the issues the English Court of Appeal had to decide in September 2000 in the case of the Conjoined Twins[1].
[1] A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147
One of the twins had good prospects of living a healthy life of reasonably good quality. But she had a common aorta with her sister, whose heart and lungs were virtually useless and who derived her life from the oxygenated blood drawn from her sister’s heart. She was destined to die very soon. If she was separated from her sister she would die as soon as the aorta was severed. If she was not separated from her sister, her sister would be bound to die before she was a year old. Was it lawful to perform surgery with the purpose of saving the sister’s life? What was the effect, in law, of the parents’ refusal to consent to surgery?
During the hearing members of the court contacted judges in the Supreme Court of Canada, the High Court of Australia, and the Constitutional Court of South Africa. None of them could think of any comparable decided cases in their jurisdictions. The only positive comment we received was that it sounded like an extremely difficult exam question. The appeal had to be decided under pressures of time – judgment was given 18 days after the appeal was opened and nine days after the hearing ended – and the pressures were the more intense because nobody had turned their mind to the criminal law complexities of the case until the court raised them itself on Day 1 of the hearing. After Day 3 the hearing was adjourned for 5 days so that the parties could address a series of difficult issues which the court had raised. On the fifth, and final, day of the appeal hearing the court considered for the first time a file containing relevant case laws from the European Court of Human Rights which had been lodged by an intervening party. In the event, the children’s parents decided not to appeal to the House of Lords.
Questions relating to the primacy of the interests of the viable child, as against the interests of the non-viable child and/or the wishes of the children’s parents, could be decided by reference to English statute law (the Children Act 1989) and the case law decided under that Act. What was much more problematical was the lawfulness of the act of cutting the common aorta. For the resolution of that issue the answers had to be found in the English common law, supported by a cross-check to ensure that the proposed solution did not violate the European Convention on Human Rights.
So far as the facts of the case were concerned, the twins’ parents came from the island of Gozo, off the coast of Malta, and there were arrangements in place whereby England agrees to accept a number of Maltese patients each year to be treated in English National Health Service hospitals. When an ultrasound scan revealed that the mother was carrying conjoined twins, arrangements were made for her to be admitted to St Mary’s Hospital, Manchester. This was a centre of excellence in this field, and the lead consultant responsible for her case there was also Maltese.
The twins were born on 8th August 2000, with a combined birth weight of six kilograms. We were shown photographs of them during the hearing which we did not release to the press. Lord Justice Ward, who was presiding, described their effect and other features of the twins’ condition, in detail in his published judgment.
The clinical team at St Mary’s were united in their belief that their professional duty obliged them to do everything in their power to save Jodie, even if the necessary surgery inevitably brought about Mary’s death. A report from the hospital at the end of August recorded that Jodie’s heart at that stage remained stable and showed no signs of strain from supporting, virtually completely, her sister Mary as well as herself. She was feeding normally by mouth and appeared to be a bright little girl achieving the expected developmental milestones.
Mary, on the other hand, was severely abnormal in three critical respects. She had a very poorly developed “primitive” brain, the result of a major malformation which was probably present early in life. Her heart was very enlarged, and was doing very little work of its own accord in terms of actually pumping blood out round the body. And there was a virtual absence of functional lung tissue. When we invited specialists from Great Ormond Street Children’s Hospital to examine the twins in mid-September, they reported that she was not capable of separate survival because of grossly impaired cardiac performance and no useful lung function, with no prospect of recovery.
Alongside the clinical team at St Mary’s the stars of the case were the twins’ parents. They were devout Roman Catholics. They believed sincerely that nature should be allowed to take its course. They would not contemplate an abortion, and when the twins were born they could not contemplate any surgery being undertaken that would kill one of their daughters. They said:
“We have faith in God and we are quite happy for God’s will to decide what happens to our two young daughters.”
They had also been given to understand that Jodie would have serious disabilities even if she survived the operation and they did not know how they could begin to cope with the care of a very seriously handicapped child on their tiny island.
One of the happiest features of the case was the warmth of the relationship between the children’s parents and the clinical team at the hospital despite their strongly conflicting views on the desirability and propriety of an operation.
Although early surgery was not in contemplation, the hospital made its application to the court for a declaration that the proposed operation would be lawful on 25th August, 17 days after the twins were born. The application came before Mr Justice Johnson, an experienced judge in the Family Division. He heard evidence from members of the hospital’s clinical team over a video link between Manchester and London, and granted the hospital the declaration they sought at the end of a comparatively short hearing. In particular he equated the withdrawal of the supply of blood from Jodie to Mary with the withdrawal of the artificial supply of nutrition to Anthony Bland, and did not address the seriously difficult issues of criminal law with which we had to grapple in the Court of Appeal.
I was on vacation duty in the Court of Appeal that year during the last two weeks in August, and preliminary arrangements were made for a one-day hearing of the appeal on 30th August, with me sitting in a division of the court which would have included Lady Justice Brenda Hale. In the event that hearing was postponed, and Lord Justice Robert Walker and I agreed to sit for a further one and a half days at the beginning of the following week. Lord Justice Ward, another judge with family law expertise, presided.
Counsel whose expertise was in medical law appeared at the hearing before the judge. Seven counsel appeared at the start of the hearing in the Court of Appeal (two for the hospital, one for the parents, and two each representing Jodie and Mary’s interests), and they now included at least two who specialised in family law. By the time the hearing ended nine days later, twelve counsel (including five leading counsel) were engaged, the extra places being filled by a team of three criminal lawyers instructed by the Attorney-General as “friends of the court”, a criminal law QC joining the team who represented Jodie, and a human rights specialist QC representing an organisation called the Pro-Life Alliance, whom we allowed to make written submissions.
This upsurge of legal representation arose after I had inquired 30 minutes into the hearing whether we were being provided with assistance from the Attorney-General, because this appeared to be the most difficult criminal law problem I had ever seen. Fortunately his office was able to respond quickly to our request, and we arranged the hearing so that we would deal with the medical law issues and the family law issues in the first two and a half days and then adjourn the hearing. We would resume for two days on the following Tuesday and Wednesday. We could not sit on the Monday, when I had to travel out of London for my mother’s funeral, but the parties’ legal teams welcomed the extra day we gave them to prepare their arguments on the criminal law questionnaire I had set them.
I do not want to take up much time on the family law aspects of the case, although it was emotionally draining to have to reach a decision which might go contrary to the clear wishes of the children’s parents. As I have said, we had an English statute to guide us, and we were satisfied in all the circumstances that we were entitled and obliged to put the welfare interests of the viable child Jodie first, however much this policy ran counter to the welfare interests of her non-viable sister Mary and the wishes of her parents. Two of us found that it was impossible to say that the separation surgery would be in Mary’s best interests, but in this peculiar situation we regarded Jodie’s interest as paramount and overriding. Lord Justice Robert Walker accepted that the surgery would plainly be in Jodie’s best interests, but he thought it would be in the best interests of Mary, too, because for the twins to remain alive and conjoined in the way they were would be to deprive them of the bodily integrity and dignity which was the right of each of them.
The criminal law difficulties arose because the operation, which was explained to us by the consultant in charge of the surgical team, inevitably involved the performance of positive acts which would cause Mary’s death. So far as intent was concerned, the House of Lords had recently clarified the law.[2]
[2] R v Woollin [1999] 1 AC 82, 90-93.
If death or serious bodily harm is a virtually certain result of a particular course of action, barring some unforeseen intervention, and the actor appreciates that this will be the case, then he will be taken as a matter of law to have intended the result, however little he may wish that it will happen. Five years earlier the Law Commission had given the example of a defendant who blew up an aircraft in flight in order to recover the insurance on the cargo, knowing that the crew would inevitably be killed. Under English law he would be guilty of murder even though he did not intend or wish the death of the crew.
None of us thought that the doctrine of double effect would be apt to relieve the surgeons of criminal responsibility, although this part of our reasoning has been subject to criticism. Under this doctrine it is permissible for a doctor, acting in good faith and in the best interests of a dying patient, to administer pain-killing drugs in appropriate quantities for the purpose of pain relief, even if he/she knows that an incidental effect of the drugs will be to accelerate the moment of the patient’s death. But we agreed with the judge that by no stretch of the imagination could the surgeons be said to be acting in good faith in Mary’s best interests when they prepared for an operation which would benefit Jodie but kill her.
We therefore had to seek another way in which the surgeons might be able to demonstrate that they were legally justified in doing what they proposed to do. This involved exploring the ways in which the common law has been willing to recognise the existence of defences when someone is charged with deliberately depriving a person of his life. They are reflected in the language of Article 2 of the European Convention on Human Rights. English common lawyers played an important part in drafting the Convention, even if my country was lukewarm about the idea of introducing it into our national law for nearly 50 years after it ratified the treaty.
The first of the defences, which was irrelevant in the present context, relates to the legality of a death sentence pronounced by a court. The other revolves around the concept that in certain circumstances necessity may be permitted to trump the right to life. The most familiar example arises in the field of private necessity. Bracton wrote in the thirteenth century:[3]
[3] On the Laws and Customs of England (Seldon Society Edition 1968, at Vol 2, pp 340-348)
“Of necessity, and here we must distinguish whether the necessity was available or not; if avoidable and he could escape without slaying, he will then be guilty of homicide; if unavoidable, in order to save himself and his family, since he could not otherwise escape danger, he is not liable to the penalty for murder.”
Today this concept is expressed in the rule that a person may use such force as is reasonably necessary to protect himself or another.
The defence of public necessity is reflected in the last two examples given in Article 2(2) of the European Convention. Deprivation of life is not regarded as inflicted in contravention of Article 2 when it results from the use of force which is no more than absolutely necessary
“(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
It was the viability of these justifications which was in issue when the British Government was charged with responsibility for the act of shooting IRA suspects in Gibraltar some years ago.[4]
[4] McCann v United Kingdom (1995) 21 EHRR 97, in which the majority of the court was not convinced that the killing of the three terrorists constituted a use of force that was “no more than absolutely necessary” in defence of persons from unlawful violence within the meaning of Article 2(2)(a).
The breadth of the defence of necessity was put in issue in the case of Dudley and Stephens.[5]
[5] R v Dudley and Stephens (1884) 14 QBD 273
A ship was wrecked off the coast of Africa, and only three members of the crew and the ship’s boy survived. They spent 19 days at sea in an open boat with only two tins of turnips to eat, together with a turtle which they caught on their fourth day at sea. They had had seven days without food and five without water when two members of the crew decided they would kill the ship’s boy and eat him while they waited for help to come. The third man refused to have anything to do with this plan. Four days later they were picked up by a passing boat. When they were eventually landed at Falmouth they freely admitted what they had done.
There was a good deal of concern in judicial quarters about the prevalence of cannibalism on the high seas and the likelihood that the defendants would be acquitted by an Exeter jury. The jury was therefore allowed only to find the facts of the case in a special verdict, and the trial was transferred to the High Court in London for a ruling on the question whether they had a defence as a matter of law. It was found that they had not. Lord Coleridge CJ gave these reasons for explaining why the defence of necessity was not available:
“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’.”
It was for this reason that we all learned in the law books that necessity was not available on a charge of murder. More recently the House of Lords has ruled that duress, where one’s ability to make a free choice is overborne by threats or violence, is also not available charge of murder[6] or attempted murder.[7]
[7] R v Gotts [1992] 2 AC 232
In the first of these cases Lord Hailsham, comparing the defences of necessity and duress, said this:
“There is, of course, an obvious distinction between duress and necessity as potential defences: duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. 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 threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.”
In the same case Lord Mackay of Clashfern said:
“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 on 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?”
This was the unpromising state of English law on the defence of necessity in a murder case when we came to hear the Conjoined Twins case. Although the mandatory sentence on a conviction for capital murder was death until 1965, and life imprisonment has been mandatory on a conviction for murder ever since then, the existence of the Royal prerogative (Dudley and Stephens only served six months in prison) or the unwillingness of the prosecuting authorities to prosecute in an extreme case made the rigidity of the law more palatable. But it appeared that there were always bound to be situations where necessity really had to be available as a defence or legal justification if the law was to be morally defensible.
One example is the well-known case of the two climbers on a rope. The lead man, Simpson, fell off a cliff and was suspended above a large crevasse. He was held up by the rope tied to his partner Yates, and after an hour Yates was liable to be killed by being pulled off the cliff, too, by Simpson’s weight. Yates eventually cut the rope to save his own life. In the event, both men survived, but would Yates have been guilty of murder if Simpson had died, and if not why not?
In the disaster of the Herald of Free Enterprise, the ferry which sank at Zeebrugge, a young man was seen petrified by fear on a rope ladder which represented the only route to safety of dozens of people who were in danger of drowning. After ten minutes an army corporal directed that the man should be pushed off the ladder, up which many of the survivors then swarmed. Was the corporal guilty of murder and if not why not?
And what about the pilotless aircraft, out of control and running out of fuel which took the American Ryder Cup golfer Payne Stewart and the others with him towards an inevitable death? If the plane had been shot down as it approached a large centre of population, would this be an act of murder? And if not, why not?
Sir James Stephen wrote:[8]
[8] History of the Criminal Law of England, by Sir James Stephen, pp 108-1101
“Compulsion by necessity is one of the curiosities of law, and so far as I am aware is a subject on which the law of England is so vague that if cases raising the question should ever occur, the judges would practically be able to lay down any rule which they considered expedient. The old instance of the two drowning men on a plank large enough to support one only, and that of shipwrecked persons in a boat unable to carry them all are the standing illustrations of this principle. It is enough to say that should such a case arise, it is impossible to suppose that the survivors would be subject to legal punishment.”
History of the Criminal Law of England, by Sir James Stephen, pp 108-111
This was the context in which we explored whether we could identify a legal justification for what was being proposed. We expressed different views, however, about the way in which we thought that the surgeons’ proposal could be justified. Lord Justice Ward put things this way:
“Mary may have a right to life, but she has little right to be alive. She is alive because and only because, to put it bluntly, but nonetheless accurately, she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie. She will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary’s parasitic living will be the cause of Jodie’s ceasing to live. If Jodie could speak, she would surely protest, ‘Stop it, Mary, you’re killing me’. Mary would have no answer to that.”
Looked at in this way, although he shied away from using American terminology and calling Mary an “unjust aggressor”, he considered that it would be lawful for the doctors to come to Jodie’s defence and remove the threat of fatal harm which Mary presented to her, in all innocence. He said by way of analogy that it would be legally justifiable to kill a six-year old boy who was using a machine gun to mow down his classmates in the school playground, even if he was too young to bear criminal responsibility for what he was doing.
The other two of us would not accept this analogy. Lord Justice Robert Walker arrived at his solution by holding that it would be wrong to say that Mary’s death would be the purpose or intention of the surgery. She would die because her body was not and never had been viable on its own. Her death would be the foreseeable but inevitable consequence of an operation which was intended and was necessary to save Jodie’s life.
In a certain sense the other two were afforded more thinking time than I was. I had to take the lead on the criminal law side, and I had to do an immense amount of reading before I could start to articulate my thoughts clearly on paper. I remember that when the three of us met at the start of the week in which we had to give judgment, the other two were far further down the track to a solution than I was. I told them then that I still couldn’t see the wood for the trees.
My judgment contains a very long historical analysis of English judicial and academic thinking about the availability and definition of a defence of necessity in the criminal law. Ultimately I concluded that it would be open to us to distinguish those cases which refused to allow necessity as a defence to a charge of murder.
The first objection in those cases was: who is to be the judge of this sort of necessity? By what measure is the comparative value of different lives to be measured? The second was that to allow such a defence in a murder case would mark an absolute divorce of law from morality. On Lord Coleridge’s first objection, I felt that in this case Mary was self-designated for a very early death because her hearts and lungs were for all practical purposes useless. The objection therefore lost its potency.
His second objection was a more formidable one. There were those, like the Archbishop of Westminster (who made written submissions to the court), who believed most sincerely that it would be an immoral act to save Jodie if by saving Jodie one must end Mary’s life before its natural allotted span was complete. But there were others who believed with equal sincerity that it would be immoral not to assist Jodie if there was a good chance that she might have a happy and fulfilled life if the operation was performed. I said that the court was not equipped to choose between these competing philosophies. All we could say was that this was not the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to the court in Dudley and Stephens. In the end I said:
“According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved
(iii) the evil inflicted must not be disproportionate to the evil avoided.
Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.
Finally, we all concluded that article 2 of the European Convention on Human Rights would not be violated if we permitted the operation to go ahead. Strasbourg jurisprudence often gives words in the Convention an autonomous meaning, and we did not think that the judges there would give the word “intentionally” the same meaning as it bears as a matter of English common law. If they did, the operation we were contemplating would not be lawful in any European country however much the children’s parents longed for their viable child to survive. We could not believe that this view of the law would prevail at Strasbourg.
Our judgments in the Conjoined Twins case will remain the last word on the matter in the law books. It is a bit like an unfinished symphony. Usually a case as difficult as this benefits by being considered three times, at first instance and in two appellate courts. As the case goes upwards, arguments become more refined, opportunities widen for considering comparative law solutions, and imperfect reasoning in the first appellate court is shredded in the more intense scrutiny of the higher court. And academic commentators have a chance to join in, too.
We did not have the time for any of this. At any moment we might hear of an emergency at Manchester which would require us to give a “Yes” or “No” answer immediately, and give our reasons later. And we had to allow time for the House of Lords to consider the arguments and give their opinions in an orderly way, because it seemed inevitable that the case would be going there. So we did our best, from a standing start, in the time available to us.
The operation was performed in the first week in November. After the surgeon cut the common aorta, the team did what they could to keep Mary alive, but she died very quickly. Although we originally directed anonymity, very soon the whole world knew that the family came from Gozo, and we lifted our order soon afterwards. Mary’s body was taken back to Gozo, where it received a public funeral. She is buried in a corner of the cemetery on a hill overlooking the town.
Jodie was well enough to go home with her parents the following June. Her mother was then reported as saying:
“We were upset that we lost the case because we always thought we should have the right to say what was best for our children and that the taking of life was wrong. The decision was taken out of our hands in the end, but we are happy that the decision to separate was taken by the judges. It meant we didn’t say ‘Yes: kill Mary to save Jodie.’ There would be great guilt if we had. I do not know how any parent could decide to end the life of one of their babies.”
And she also said:
“Jodie gives us joy in our lives. She gives us something to look forward to and so much happiness.”
In August 2002 Jodie had a new sister. Her parents gave her the same name as the child who had died. Her mother said:
“When you have been through something so major, you are frightened it will happen again, but everything was fine and we are all so happy.”
Postscript. An article in the Mail Online in October 2014 has brought the story up to date, as far as the family is concerned. 14-year-old Jodie is happy and well and is hoping to become a doctor.
Henry Brooke 