Criminal law was established to preserve the security of an individual and guarantee the survival of the group. A crime is considered as an offence when done against the public though the actual victim is an individual. A criminal is given punishment proportionate to his crime and criminal law has legislation to ascertain it. The term ‘necessity’ plays a significant role in criminal law. The defense of necessity can be applied when a person firmly believes there is an immediate threat and commits a crime in order to save his life. This defense was first tested in an English case of R v Dudley and Stephens.
An inshore boat, named ‘Mignonette’, was purchased by an Australian lawyer in 1883. He commissioned Thomas Dudley, aged 31 and the captain, to deliver it to Sydney from Southampton. The voyage started on May 19, 1884 having Edward Stephens, aged 36 and his boat mate, along with two other companions- Edmond Brooks, aged 38 and the seaman and Richard Parker, aged around 17 or 18 who was the cabin boy and an inexperienced seaman.
Fact of the case:
On 5 July, 1884 they were shipwrecked by a storm. The four men escaped in a single 13 foot lifeboat. Dudley found time to rescue the ship’s chronometer, sextant, and compass, but the only food taken on board consisted of two one pound tins of turnips. They spent 3 days with that little amount of food and had no fresh water, except such rain as they from time to time caught in their oilskin capes.
On the fourth day, they were able to catch a small turtle. The turtle was entirely consumed on the twelfth day, and for the next eight days they had no food to eat, not even water. On the sixteenth day, Parker fell sick due to having seawater. At this point, Stephens was also quite unwell. Dudley first proposed about drawing lots on who would sacrifice his life for others until any rescue arrives. Brooks was the dissenter, remarking that “he did not wish to kill anybody, and did not wish anybody to kill him.”
On the nineteenth day, Dudley and Stephens agreed to kill Richard Parker, reasoning that he was very sick and would die first among them if they got no help. July 25 was the day when Parker was killed. Dudley cut Parker’s throat with his penknife. Three of them drank his blood and ate the flesh for the next four days. On 29 July, they were picked up by a sailing ship which returned them to Falmouth. When they reached England, they were accused of murder.
Issue of the case and the defendant’s argument:
The issue was whether the killing of one to save another’s life was valid. The counsel for the defense argued that they were “only technically charged with the highest offence a man could commit against the laws of England,” adding, “homicide is also justifiable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish.” But this defense of necessity was quashed.
Lord Coleridge was one of the judges of the case in the Queen’s Bench. Lord Coleridge, CJ cited:
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’.
The High Court of Justice (Queen’s Bench Division) sentenced death to the defendants. But then the Crown pardoned them and reprieved their punishment by making it six months imprisonment.
In this case, there were four options and killing the weakest, who hardly had sense, who could not give opinion on sacrificing life and resist the killing, was inhumane even in that circumstance. The defendants had no surety if any rescue would ever come. Rescue could have come the next day of the killing of Parker and Parker could be saved from dying; again rescue could have never come and they all could die of hunger. If Parker could give consent to kill him then the circumstance could differ. Some people being sympathetic to the defendants support their killing. Indeed they were under tremendous sufferings but that does not make the killing justifiable. Dudley and Stephens were not the first people to practice cannibalism. That is why at that moment they could not realize how severe offence they committed. At that very moment the killing of Parker seemed fair to them as he was the weakest.
Reasoning of the decision:
Jeremy Bentham’s utilitarianism principle can be related here which is maximizing utility of a certain action. People should do what provides greater profit to them. But while implementing this, they should also ensure others’ profit. In this case, Dudley, Stephens and to some extent Brooks, though he did not participate in killing did what was profitable to them but forgot to ensure Parker’s side. Morality was totally abandoned by them here.
If the court gave decision on the defendant’s side, then ‘necessity’ or ‘self-preservation’ could be used as a weapon and an easy way to escape from punishment after doing an offence. It could gradually lessen the judicial system. The decision of the court disconsolate people for using necessity as a defense and encourage people to be humane in every circumstance.
Importance of the decision:
This case is one of the leading criminal cases of England and common law. A precedent was established by this case that- necessity cannot be the defense for a murder. Necessity in criminal law has three requirements, according to Sir James Stephen:
If the victim died, the defense of necessity only applies if there is no ‘selection problem’. A selection problem is where multiple people in the scenario could die, which could be averted by killing any one of them. Necessity only applies if there is no need to select a victim between multiple options.
This case is indeed interesting and creates difficulty for others to decide whose life is more important. From a neutral view, every human has the right to live and no person can kill another person in order to survive. This thought supports the judgment and finds Dudley and Stephens guilty of a murder which they did to save themselves. The defense of necessity succeeds in very few cases, especially medical cases. This criminal case becomes a leading precedent that created a lot of discordance not only in the sector of British jurisdiction but also among people around the world.
Writer: Syeda Rukaiya Binte Imam Tunaz, Student of Law, Department of Law and Justice, Jahangirnagar University.
 Michael G. Mallin, In Warm Blood: Some Historical and Procedural Aspects of Regina v. Dudley and Stephens, Class of 1968, the University of Chicago Law School, available at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3522&context=uclrev.
 The Times (London), Nov. 4, 1884, p. 3, col. 6 (Huddleston charging the grand jury at Exeter).
 4 STEPHEN, COMMENTARIES ON THE LAWS OF ENGLAND 101, 1st edition, 1841.