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R v Dudley and Stephens (1884) 14 QBD 273

The two defendants became shipwrecked by a storm. They were forced to abandon their ship and were stranded in a small emergency boat with two others including a young cabin boy. They had been stranded for 18 days. The food had ran out 7 days earlier and they had had no water for five days. Dudley and Stephens agreed to draw straws to see which one of them would be killed so that the others could eat him. The third man did not agree and the cabin boy was by this time too weak to take part in any decision. As the third man had not agreed, the defendants decided that it would be better to kill the cabin boy as he was close to death and he had no family. Dudley and Stephens cut the cabin boys throat. He was too ill to put up any resistance. All three men fed on the boy and were rescued four days later.  On their return to England Dudley & Stephens were charged with the boy’s murder.

Held:

The defendants were convicted of murder. The defence of necessity was not allowed. They were sentenced to death but then granted a pardon by the Crown and served 6 months imprisonment.

Lord Coleridge CJ:

"Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called 'necessity'. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. 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; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it….."

"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, or 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'”
Back to lecture outline on the defence of necessity in criminal law