The Facts
Two girls were born as conjoined twins; they were joined at the pelvis. Medical evidence suggested that if the girls were not separated they would both die before they were one year old. If they were separated then it was likely that the stronger one, Jodie, would survive, but the weaker one, Mary, would certainly die.
Although the issue for the Court of Appeal was simply whether or not the surgery should be allowed, this required them to consider the criminal law. This was because, if the operation took place, the surgeon might be guilty of murder. If he would commit that offence then the operation could not be authorised by the court.
Murder
The crime of murder is committed where:
(1) a person (known as the defendant) has caused the death of the victim; and
(2) the defendant intended to kill or to cause serious injury to the victim. Intention will be established either where:
(i) the defendant’s purpose is to kill or to cause serious injury (known as direct intention); or
(ii) the defendant foresaw death or serious injury as a virtually certain consequence (known as oblique intention).
Even where the defendant causes death and intends to kill or to cause serious injury, he or she will not be guilty of murder if he or she has a defence. English law recognises the following defences, amongst others:
(a) Private defence: defence of oneself or another from actual or threatened attack. This applies where the defendant acts reasonably to save him or herself or another person from harm. Traditionally the defence will only be available where the defendant or another person is attacked or about to be attacked by the victim.
(b) Duress of circumstances. This applies where the defendant or another person is subject to a threat of death or serious injury. This defence has not previously been applied where the defendant has been charged with murder.
(c) Necessity. This applies where the defendant commits one crime to avoid greater harm. However, this defence has not been recognised as a defence to murder.
The Issues
The key issues for the Court of Appeal concerned whether, if the surgery was performed and Jodie died, the surgeon would be guilty of murder. In particular:
(i) whether the surgeon could be considered to have intended to kill Mary by performing the operation; and
(ii) if so, whether the surgeon would have a defence, particularly whether the defence of necessity, in the sense of acting for the greater good, should be extended to the crime of murder.
Now read through the texts in the activity resources, watch the videos from Professor Graham Virgo and then consider the questions below.
