Regarding criminal law

In the case of Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961, the court considered inter alia the law on the unlawful killing and the defence of necessity. With particular reference to the leading judgements regarding criminal law, explain the key principles and the reason for the decision. The recent case of Re A is a complicated case in which several key principles of criminal law have to be discussed. Many conflicting issues had to be considered by the three justices; Ward, Brooke and Robert Walker LJJ.

These principles include; the sanctity of life/right to life, unlawful killing/murder, duties of care, intention and necessity. As well as case law, statute also exists within the case. The case of Re A is concerned with the fate of a pair of conjoined or 'Siamese' baby twins; Jodie and Mary. The appeal from the girls' parents was allowed after a previous judgement by Johnson J granted an operation to separate the twins, an operation which would almost certainly provide Jodie with a normal, healthy life but would definitely result in the death of her sister Mary.

It was stated that if the twins were not separated, then they would both die in three to six months, however if they were separated, Mary would die immediately but Jodie could go on to live as a regular individual. Johnson J's judgement was questioned in the course of the appeal and this shall be discussed later. In regards to the fact that Mary would certainly die as a result of the proposed operation; the vital questions that had to be answered were; "- Whether the court should permit operation – Whether operation would be lawful.

The first points that need to be covered are the principles of the sanctity of life and the right to life. The sanctity of life principle stems from religion and was commented on by the Archbishop of Westminster in his written submission to the court2; it follows the concept that God created all life and so it is to be respected and cherished. This theory has then led to the sanctity of life being protected in an official capacity by English Law itself. The principle is further supported by the Human Rights Act 1998; enacted to incorporate the European Convention on Human Rights into English law.

Schedule 1, Article 2 of the 1998 Act outlines the concept of the 'right to life', it states that everyone's right to life is protected by the law and as a result, no one can be intentionally deprived of this right3. Brooke LJ shows the significance of this right during his judgement; "The right to life is one of the most important values protected by our law. " 4 The justices also had to consider the law of murder alongside the principle of the right to life. The reason for this is the question of criminal liability of doctors; can they be held responsible if a patient dies during an operation?

In his judgement, Ward LJ uses the following statement to answer this question;5 "Bona fide medical or surgical treatment is not "unlawful" and therefore death resulting therefrom does not amount to murder," 6 As the text suggests, this application of immunity for medics only applies in a regular scenario; Ward addresses the fact that Mary and Jodie's operation would not be a commonplace procedure, not only due to the rareness of the situation of conjoined twins, but because the doctors are already fully aware that Mary will die as a result of the separation.

Therefore, in the case of Re A, the involved medics can be held liable if Mary dies, so the law of murder needed to be looked at to ascertain whether this offence can be committed in this case. Brooke LJ addresses the law of murder well in his judgement; he refers to the Archbold definition; "Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm… " 

From quoting the above definition, Brooke LJ goes on to dismantle it to identify the individual areas of the law of murder and how they apply to the case of Re A; "The words or phrases in the Archbold definition, which need to be explored in the present case, are the words "unlawful", "kills", "any reasonable creature" and "with intent to kill". " 8 All three judges agreed that Mary was to be considered a reasonable creature, Brooke LJ comments on the presence of medical advances which mean that 'Siamese' twins are no longer referred to as 'monstrous' and are therefore reasonable creatures in being;

"Advances in medical treatment of deformed neonates suggest that the criminal law's protection should be as wide as possible and a conclusion that a creature in being was not reasonable, would be confined only to the most extreme cases, of which this is not an example. " 9 With the unanimous conclusion that Mary was a reasonable creature came the complication that she was now capable of being murdered, and therefore, if the doctors were to proceed with the proposed operation, they could be held liable for her death.

The next principle addressed by Brooke LJ was the meaning of the word 'kills'. This comes in reference to the concepts of acts and omissions. Brooke, Ward and Walker LJJ all refer to this matter and in particular, with reference to the case of Airedale NHS Trust v Bland [1993] 1 All ER 821. The court in Bland ruled that the doctors would be free from criminal liability if they discontinued the feeding because it would be an omission, not an act. With the law of murder requiring the accused to carry out a positive act. The withdrawal of treatment was seen as an omission and so not murder.

In the original hearing of Re A, Johnson J used this principle to suggest that the Re A operation would be an omission because it involved withdrawing Mary's blood supply. However, at appeal, Brooke, Ward and Walker LJJ all agreed that the operation could never be seen as an omission due to the invasive nature of the surgery that would have to be carried out on both twins. Mens rea is also required for murder, e. g. intention, Brooke LJ commented on this principle; "If he acts in order to achieve a particular purpose, knowing that that cannot be done without causing another result, he must be held to intend to cause that other result. "