May 18, 2012 2.48 pm This story is over 119 months old

Lincoln Lawyer: Is there a justification to kill?

License to kill: There are moral dilemmas few of us would want to face.

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.

In 1884 an Australian lawyer bought a pleasure yacht. However, although he was in Australia, the yacht was in England. He had difficulty in finding a crew to sail such a small vessel (only 52 feet long) such a distance, but eventually four men agreed to do so. The captain was Tom Dudley, the crew Edwin Stephens, Edmund Brooks and Richard Parker, who at only 17 was the youngest and least experienced.

Some way south of the Equator the yacht was damaged in a storm and sank very quickly. The crew took to the lifeboat, but did so in such a hurry they were only able to take two tins of turnips and the navigation equipment. They had no water. Although they were able to kill and eat a turtle, by the eighth day they were out of food and, having had no water, they were reduced to drinking their own urine.

Two weeks after the sinking they had still had no more food or drink and were 700 miles from land. At this point Parker became unwell. He was in a coma. It seemed his death was inevitable. After some argument between the other three, spread out over several days, Dudley and Stephens killed Parker; one holding him down while the other slit his throat with a knife. Brooks just watched. All three of them then ate Parker’s body parts. Four days later a passing ship rescued them.

On their return to England, they made no attempt to cover up what they had done. They believed that they were protected by a custom of the sea, which entitled them to do what they had done in such circumstances. They were, however, very wrong.

Dudley and Stephens were charged with murder, with Brooks giving evidence for the Crown, although the facts were not much in dispute. The two argued they had a defence of necessity. To survive, they had to kill a man who would have died anyway. The trial judge disagreed and told the jury to find both defendants guilty.

They appealed, but the court of appeal upheld the conviction. Necessity is not a defence, the court said, to murder. As the court pointed out, who is to be the judge of this sort of necessity? What is the comparable value of a life?

So the law stood until 2001 when the Court of Appeal said that the Dudley and Stephens’s precedent was not absolute. In another case, the court had to look at conjoined twins. If surgeons did not operate, they would both die. If they did, one may live but the other would inevitably die. The court said that the surgeon would have a defence to any hypothetical murder charge. However, these exceptions only applies where the inevitable consequence of taking no action is the death of two people whereas taking action would save one and kill the other.

Dudley and Stephens had a moral dilemma. They killed Parker to save themselves. The surgeon had a slightly different dilemma, to kill one baby to save another. In light of the 2001 decision, would the outcome in Dudley and Stephen’s case be different today? Probably not, because they were acting to save themselves whereas the surgeon would be acting to save someone else. But who knows? Either way, these are moral dilemmas few of us would want to face.

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.