LORD JUSTICE WARD:

LORD JUSTICE WARD:

Exceptionally we allowed the Archbishop of Westminster and the Pro-Life Alliance to make written submissions to us. We are grateful for them. We are also very grateful for the very considerable research undertaken by the Bar and by the solicitors and for the powerful submissions counsel have advanced which have swayed me one way and another and left me at the conclusion of the argument in need of time, unfortunately not enough time, to read, to reflect, to decide and then to write.

It truly is a unique case. In a nutshell the problem is this. Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie's heart will eventually fail. The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics they sincerely believe that it is God's will that their children are afflicted as they are and they must be left in God's hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to us for permission to appeal against his order. We have given that permission and this is my judgment on their appeal.

It is, however, important to stress the obvious. This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law to the situation before us - a situation which is quite unique.

The problems we have faced have gripped the public interest and the case has received intense coverage in the media. Everyone seems to have a view of the proper outcome. I am very well aware of the inevitability that our answer will be applauded by some but that as many will be offended by it. Many will vociferously assert their own moral, ethical or religious values. Some will agree with Justice Scalia who said in the Supreme Court of the United States of America in Cruzan v Director, Missouri Department of Health (1990) 110 S. Ct. 2841, 2859:-

In this case the right answer is not at all as easy to find. I freely confess to having found it exceptionally difficult to decide - difficult because of the scale of the tragedy for the parents and the twins, difficult for the seemingly irreconcilable conflicts of moral and ethical values and difficult because the search for settled legal principle has been especially arduous and conducted under real pressure of time.

In the past decade an increasing number of cases have come before the courts where the decision whether or not to permit or to refuse medical treatment can be a matter of life and death for the patient. I have been involved in a number of them. They are always anxious decisions to make but they are invariably eventually made with the conviction that there is only one right answer and that the court has given it.

The parents have appealed on the grounds that the learned judge erred in holding that the operation was (i) in Mary's best interest, (ii) that it was in Jodie's best interest, and (iii) that in any event it would be legal. The appeal has accordingly ranged quite widely over many aspects of the interaction between the relevant principles of medical law, family law, criminal law and fundamental human rights. I propose to address them in that order.

However pitiable her state now, it will never improve during the few months she would have to live if not separated. During the course of the hearing I raised with counsel and with one of the paediatricians the question of pain. Mary cannot cry. She has not the lungs to cry with. There is no way that can be remotely described as reliable by which those tending Mary can know even now whether she is hurting or in pain. When lightly touched or stroked her face contorts. When pinched there is the same reflex. But she cannot cry. So I ask, what would happen as the weeks went by and Jodie moved, tried to crawl, to turn over in her sleep, to sit up. Would she not, I ask, be pulling Mary with her. Linked together as they are, not simply by bone but by tissue, flesh and muscle, would not Mary hurt and be in pain? In pain but not able to cry. One very experienced doctor said she thought that was an horrendous scenario, as she put it being dragged around and not being able to do anything about it. Accordingly, weighing up those considerations I conclude that the few months of Mary's life if not separated from her twin would not simply be worth nothing to her, they would be hurtful. ... To prolong Mary's life for these few months would in my judgment be very seriously to her disadvantage."

The case as it was presented to him and the case in the shape into which we knocked it are as different as chalk and cheese. I would like to record my sympathy for the judge, sitting alone, having to take such a decision as this in such difficult circumstances. He found that Jodie would be able to lead "a relatively normal life":-

His judgment was given, as so frequently happens in this kind of case, under even greater pressure of time than we have felt. He did not have the benefit of the searching arguments we demanded and received of counsel.

There has been some public concern as to why the court is involved at all. We do not ask for work but we have a duty to decide what parties with a proper interest ask us to decide. Here sincere professionals could not allay a collective medical conscience and see children in their care die when they know one was capable of being saved. They could not proceed in the absence of parental consent. The only arbiter of that sincerely held difference of opinion is the court. Deciding disputed matters of life and death is surely and pre-eminently a matter for a court of law to judge. That is what courts are here for.

Thus they issued an originating summons on 18th August entitled "In the exercise of the inherent jurisdiction of the High Court and in the matter of the Children Act 1989". The relief which was sought was:-

I am satisfied there has been the closest consultation between the medical team, the parents, their friends, their priest and their advisers. Just as the parents hold firm views worthy of respect, so every instinct of the medical team has been to save life where it can be saved. Despite such a professional judgment it would, nevertheless, have been a perfectly acceptable response for the hospital to bow to the weight of the parental wish however fundamentally the medical team disagreed with it. Other medical teams may well have accepted the parents' decision. Had St. Mary's done so, there could not have been the slightest criticism of them for letting nature take its course in accordance with the parents' wishes. Nor should there be any criticism of the hospital for not bowing to the parents' choice. The hospital have care of the children and whilst I would not go so far as to endorse a faint suggestion made in the course of the hearing that in fulfilment of that duty of care, the hospital were under a further duty to refer this impasse to the court, there can be no doubt whatever that the hospital is entitled in its discretion to seek the court's ruling. In this case I entertain no doubt whatever that they were justified in doing so.

I said when this appeal opened that we wished at the very beginning to emphasise to the parents, strangers in our midst, how we sympathise with their predicament, with the agony of their decision - for now it has become ours - and how we admire the fortitude and dignity they have displayed throughout these difficult days. Whether or not we agree with their view does not diminish the respect in which we hold them.

We do not understand why we as parents are not able to make decisions about our children although we respect what the doctors say to us and understand that we have to be governed by the law of England . We do know that everyone has the best interests of our daughters at heart and this is a very difficult situation not only for us as their parents but also for all of the medical and nursing staff involved in Mary's and Jodie's treatment." [I have added the emphasis to make it clear that the parents accept the jurisdiction of the English courts to decide the awesome question laid before us.]

This has meant that we have also had to give very careful consideration to leaving Jodie in England, should she survive, to be looked after by other people. We do not know if other people would be willing to look after such a seriously disabled child, but we do know that this is something that if we had any other choice we would not even give it consideration. It would be an extremely difficult, if not impossible decision for us to reach, but again we have to be strong and realistic about matters and understand that certainly Jodie would receive far better care and importantly the required medical treatment should she continue to reside in England as opposed to her being taken home. We do not know whether it is possible or feasible for Jodie to remain in England. We do not know if it is possible or feasible for her to be fostered by another family so that we can have an involvement in her upkeeping or whether she would have to be adopted and we could have no contact with her at all. That would break our hearts. We do not want to leave our daughters behind, we want to take them home with us but we know in our heart of hearts that if Jodie survives and is seriously disabled she will have very little prospects on our island because of its remoteness and lack of facilities and she will fare better if she remains in this country. ... So we came to England to give our babies the very best chance in life in the very best place and now things have gone badly wrong and we find ourselves in this very difficult situation. We did not want to be in this situation, we did not ask to be in it but it is God's will. We have to deal with it and we have to take into account what is in the very best interests of our two very young daughters.

In addition we cannot see how we can possibly cope either financially or personally with a child where we live, who will have the serious disabilities that Jodie will have if she should survive any operation. We know there is no guarantee of survival but she is the stronger of the two twins and if she should survive any surgery then we have to be realistic and look at what we as parents can offer to our daughter and what care and facilities are available to her in our homeland. They are virtually nil. If Jodie were to survive she would definitely need specialist medical treatment and we know that cannot be provided. Jodie would have to travel, on many occasions, possibly to England to receive treatment. It concerns us that we would not have any money for this treatment and we do not know if this is something (our) government would pay for.

These are things we have to think about all the time. We know our babies are in a very poor condition, we know the hospital doctors are trying to do their very best for each of them. We have very strong feelings that neither of our children should receive any medical treatment. We certainly do not want separation surgery to go ahead as we know and have been told very clearly that it will result in the death of our daughter, Mary. We cannot possibly agree to any surgery being undertaken that will kill one of our daughters. We have faith in God and are quite happy for God's will to decide what happens to our two young daughters.

As parents of the children, their views are a very important part of this case. It is right, therefore, that I set them out as fully as possible:-

It is a laudable feature of this case that despite holding such different views about the twins' future, the parents and the hospital have throughout maintained a relationship of mutual respect. The highly commendable attitude of the parents is shown in this passage in their statement:-

A considerable body of medical literature has been placed before us, as well as a number of helpful articles referring to the legal and ethical problems in dealing with conjoined twins. It has been fully discussed in the judgment of Brooke L.J., a copy of which I have read in draft, and, rather than repeat any of it in this judgment, I gratefully adopt his exposition.

Miss Parker wisely and properly did not pursue this line. It would make a mockery of law and medicine to escape some of the difficulties in this case by hooking this child into a heart/lung support machine and then seeking permission to discontinue that treatment given the futility of prolonging her life. Bland has already left the law, as Lord Mustill commented, in a "morally and intellectually misshapen" state. It would be quite wrong, as the doctors recognise, to contemplate this an acceptable outcome to the case. But it remains a poignant irony in the case. At one end of life, the pregnancy could have been lawfully terminated, Mary would have died but no offence would have been committed because she is not viable. Now at the other end, were it ethically permissible to do so, life could have been preserved artificially and then ended on Bland principles.

Miss Parker Q.C. on Jodie's behalf asked the surgeon a "very theoretical question" whether Mary could be kept alive if she were attached to a heart lung machine immediately after the common aorta was severed. He agreed that it was possible but he went on to say:-

The paediatric neurosurgeon, observing that her brain is not functioning normally and that she would not achieve the development one would expect in the next three to six months in a child with a normal brain, then said, in answer to the question whether she had any ability to feel pain or suffering:-

A. It is extremely difficult, sir, I do not have a straightforward answer for you ... My Lord, the responses that Mary shows are certain stereotype responses that we can observe as doctors, but it is how you interpret those responses which matters. If that response occurs to being tugged or pulled, her being pricked to obtain a blood sample, the interpretation that one might place on that stereotype response is possibly pain. On the other hand, if you get a similar response to gentle stroking it might not imply pain."

If the twins are to remain fused, the evidence is that Mary will have a 75% or more chance of developing hydrocephalus which would be "extremely difficult" to treat because usually the end of the shunt system would either go into the abdominal cavity which is abnormal in her case or into the heart which is also not possible in her case. The effect of untreated hydrocephalus will be to increase brain damage. She is at risk of suffering epilepsy. Lack of sufficient oxygen will progressively cause cellular damage and brain damage. In the view of the neonatologist, her condition is not terminal but severe.

A. I think I come back to the fact that the quality of any life that she will have will be so poor that, yes, I feel that it is appropriate to terminate her life."

Q. ... I do not think you have quite answered my question. Is it really your view that the best option for Mary is to terminate her life?

A. If you look at it in terms of Mary dying, no, there is not a therapeutic benefit. If you look at it in terms of what Mary's life would be like attached forever to her sister, then it is not a benefit for her to remain attached to her sister: she will be much happier if she is separate."

A. Can I question "best interests"? It is only in Mary's best interests insofar as it is her only means of survival to continue to use Jodie as her oxygen supply and her circulatory pump ...

Q. Just focusing on Mary for a moment, there cannot really be any doubt, can there, that, as His Lordship said, it is in Mary's best interests to maintain the status quo?

A. Yes and that is a very serious worry for all of us involved in such an act and we would only look to taking it on if we felt that there was really and truly in the best interest, taking the whole situation as it is, of Jodie and if Mary's long-term survival was so poor that it was not really a sensible proposition, also leaving them united together detracts markedly and severely from the quality of life for both really.

If the operation to separate the twins is carried out, Mary will be anaesthetised against all pain and death will be mercifully quick. The surgeon was frank in acknowledging there was really no benefit for Mary in the operation. This was put to him:-

From the available literature, it seems that gait is normal, or near normal. Jodie does have a hemi vertebra at the lower end of her thoracic spine. It is possible that she would need scoliosis surgery should a curvature of the spine develop. At present the need for surgery cannot be predicted and one would need to await further spinal growth."

The surgeon is hopeful, though he cannot be certain, that they would be able to preserve what seems like a relatively normal bladder function. Again the worst case scenario would be that Jodie would have to have a urinary diversion with a bag. The surgeon commented in evidence:-

He explained the difficulty. The prospect is that the anus will learn to open and close normally. If that has not been achieved by about school age, it may need wash-outs and enemas and such like and the possibility of a colostomy. The family would need some form of medical nursing support initially to help them in learning how to care for the attachment of the colostomy bag and there may be practical difficulties in finding a ready availability of those bags in their homeland. As the surgeon observed:-

Those effects could be palliated with drugs and the use of a ventilator. A similar breathlessness would occur if she suffered hypoxia, a drop in the oxygen concentration in the blood, usually as a result of infection. Such an infection might be septicaemia, some forms of which are not always successfully treated by antibiotics. Very young babies often suffer necrotising enterocolitis but the risk is decreasing as time goes by. If they suffered respiratory infection, she may again need to be placed on a ventilator. If she were to survive without the onset of illness, she would, ordinarily, attempt to roll over so that she is lying on her abdomen, ultimately to get into a crawling position. This would happen between five to eight months of age. She would instinctively want to try these movements but it will not be possible due to the attachment of Mary who, by reason of her brain anomalies, would not be developmentally at the stage where she would be wishing to undertake the same manoeuvre. For Jodie there will be the frustration of not being able to move.

If the twins remain united, then, as already set out, Jodie's heart may fail in three to six months or perhaps a little longer. But it will eventually fail. That is common ground in this case. Her prospect of a happy life is measurably and significantly shortened. As to the manner of her death the surgeon told us that:-

With respect to her contiguous sacra, given that she has normal bladder function it is likely that the nerve supply to the lower limbs will be sufficient to enable her to walk reasonably normally. She will of course require surgery to stabilise her pelvis.

Secondly, there was a suggestion in the oral evidence to the judge that as a matter of prudence, given the utterly hopeless outcome for Mary, it would be better to favour Jodie "in relation to the skin element to ensure that we could close the surgical wound with Jodie". In evidence to us the surgeon explained that although that was the prudent course, it was not a necessary course and, if required not to do so, that precaution would not be taken, so that, putting it crudely, no part of Mary would be given to Jodie. It is important to recognise that this is not a case involving any organ transplant nor indeed the donation of any bodily parts from one child to the other.

It is a major procedure and it will take many hours and it will involve various teams of surgeons: ourselves, the orthopaedic surgeons and one of the neurosurgeons in particular, as well as an anaesthetist for each baby and his team."

The rest of the operation for Jodie would then be essentially a reconstructive operation, attempting to bring the pelvic bones together. One needs to break them and divide them at the back in order to allow rotation and apposition in front and then forming the buttocks and forming the anus and the vagina and urethra and essentially closing the abdominal wall anteriorly.

Once we reach that stage, we should be left with possibly some muscle union at the pelvic floors, that will need to be divided so that each has its own two halves. Finally and eventually we have a major blood vessel, which is the continuation of Jodie's aorta, which is bringing blood across to Mary, and similarly the vena cava, which is returning blood from Mary to Jodie. Those would need separating, dividing. It is at that point that we would expect that Mary would then die.

No-one in the case advances this option. The probability seems to be that Jodie would die first and Mary's death would follow immediately. So long as Mary is alive the real problems in the case remain whether it is elective surgery or surgery undertaken in response to the intervening event.

I cannot provide an accurate estimate for an "upper limit" for life expectancy but this estimate would gradually increase with time if the present satisfactory progress from the point of view of Jodie's cardiac performance is maintained."

Life expectancy with non-surgical supportive care is difficult to estimate. However progress to date suggests that the chance of survival of both twins to beyond the age of six months is probably greater than the previously suggested 10-20%.

The estimated life expectancy of three to six months ... was reasonable, in my opinion. Any estimate of anticipated survival in this case will have wide confidence limits, and may need revision according to observed progress. Since the suggested 80-90% chance of death by age six months was made, more than two weeks has elapsed without evidence of haemodynamic deterioration. Jodie's heart continues to provide adequate tissue perfusion to both her own body and that of Mary without the need for pharmacological support. I do not know how long the twins will survive without surgical intervention. However, with the benefit of the longer follow up to date, I would estimate the chance of survival to beyond six months to be greater than the 10-20% likelihood previously suggested ...

A. I think at the moment ... because Jodie is essentially pumping for the vital organs of both twins as they breathe, I think that is unlikely ... I think that while Jodie is performing o.k., Mary will survive. I think if she was to deteriorate to the point where Mary was to die because of Jodie's heart being compromised I think probably both twins would die simultaneously."

A. In terms of conjoined twins it is very difficult to be precise ... but I think three to six months is a reasonable guide of the kind of time we could be looking at."

Q. Are you able to express an opinion upon when, if at all it is likely that Jodie will suffer this condition of high cardiac output failure?

A. At the time the heart failed to pump blood round both babies both Jodie and Mary would have less blood going to the vital organs and the kidneys would potentially fail ... the brain would be again further starved of blood and oxygen and that would lead to the death of both infants.

That is the sad fact for Mary. She would not have lived but for her connection to Jodie. She lives on borrowed time, all of which is borrowed from Jodie. It is a debt she can never repay.

A. I think, as has already been said, if Jodie wasn't covering Mary's circulation she wouldn't be alive now if they were separate twins. There is no flow at all into her heart. I don't think things could get any worse than they are at present."

Q. So far as Mary's heart is concerned, is there any further deterioration that can occur in her heart that will cause any problems?

The second problem is with her heart. Hers is very enlarged, almost filling the chest with a complex cardiac abnormality and abnormalities of the great vessels. In his evidence the cardiologist said:-

A. Very severe indeed ... It is possible that this child is progressively developing hydrocephalus which might be to its detriment. Corpus callosum in later childhood is associated with seizure disorders/epileptic fits. It is also associated with developmental delay and learning difficulties."

Firstly she has a very poorly developed "primitive" brain. The brain scan showed various abnormalities including reduced cortical development, ventricular enlargement, partial agenesis of the corpus callosum and a Dandy Walker type malfunction of the hindbrain. A neuronal migration defect may have occurred. These are the result of a major malformation which was probably present early in fetal life. Similar brain malformations are not compatible with normal development in post-natal life. The neurologist gave evidence and these passages are pertinent:-

After that hearing Jodie suffered a severe blood infection with Staphylococcus aureus and needed urgent intravenous resuscitation with plasma and antibiotics for which treatment the parents gave consent. It was effective and she soon returned to normal. The antibiotics have been discontinued and she is not receiving and indeed she does not require any medical support, though she has retained the intravenous catheter which was surgically placed at the time of her collapse.

There are some complications in that there is only one external opening which communicates with the urinary bladder and vagina and there is no opening of the anus.

The information concerning the twins' condition was originally given in a number of statements by the treating doctors, and by the evidence they gave Johnson J. It is worthy of noting, and we commend Johnson J. for his typically sensible approach, that the evidence of the doctors was taken by a video link facility outside the confines of the Royal Courts of Justice. Sooner, rather than later, fully efficient facilities ought to be established here. Since there was a degree of urgency about the hearing, no second opinion was available. This left us with a slight sense of unease that there may have been a rush to judgment and so we encouraged, and all parties agreed to, the Great Ormond Street Hospital for Children reporting to us and we are grateful for the speed with which they did so. During the course of the hearing, we have had up-dating reports on the twins' progress.

Internally each twin has her own brain, heart, lungs, liver and kidneys and the only shared organ is a large bladder which lies predominately in Jodie's abdomen but which empties spontaneously and freely through two separate urethras.

The reports and medical literature did not prepare me fully for the almost numbing surprise at first seeing the twins in the photographs which were produced to us, though not to Johnson J. After the initial shock one is filled with desperate sadness and sympathy for these helpless babies and their devastated parents. These photographs are taken from the side and show the twins lying end to end on their backs. Jodie's head seems normal but Mary's is obviously enlarged, for she has a swelling at the back of the head and neck, she is facially dysmorphic and blue because she is centrally cyanosed. Between these two heads is a single torso about forty centimetres long with a shared umbilicus in the middle. Two legs, Mary's right and Jodie's left, protrude at an acute angle to the spine at the centre of the torso, lying flat on the cot but bending to form a diamond shape. The external genitalia appear on the side of the body. The consultant's report reads:-

They are ischiopagus (i.e. joined at the ischium) tetrapus (i.e. having four lower limbs) conjoined twins. The ischium is the lower bone which forms the lower and hinder part of the pelvis - the part which bears the weight of the body in sitting. The lower ends of the spines are fused and the spinal cords joined. There is a continuation of the coverings of the spinal cord between one twin and another. The bodies are fused from the umbilicus to the sacrum. Each perineum is rotated through ninety degrees and points laterally.

The assessment panel in their homeland not surprisingly judged that theirs was a case which local resources could not manage and in that way their government paid for the mother to travel to Manchester in mid-May for treatment during her pregnancy. The father has managed somehow to join her there.

Through long established links between their government and ours their country is allowed to send a number of patients to be treated here on our National Health Service. We explain this because we read of what may be a concern to some that the parents are Kosovan refugees unjustifiably draining our resources. They are not, nor anything of the kind. That said, we remind the curious that the injunction covers any publication of any matter "calculated to lead to the identification" of the parents' address.

When about four months pregnant, an ultrasound scan revealed that the mother was carrying twins and that they were conjoined. A doctor at the hospital had trained at St. Mary's Hospital, Manchester, and knew of its expertise and excellence. He advised that they should seek treatment there.

The father is forty-four years old; his wife is ten years younger. They have been married for two years and have no other children. Life is hard for them. There is simply no work for the husband. He has been unwillingly unemployed for eight years. The mother was more fortunate but her work terminated during her pregnancy. They have, somehow, managed to accumulate very modest savings and were in process of building a home for their expected family.

Enough is known about this case for everyone to understand what a hideous nightmare it must be for these parents. If anyone is entitled to peace and privacy it is this mother and father and their babies. To protect them, Johnson J. made an order preventing the publication of anything calculated to lead to the identification of the parties or even their addresses - and that includes for the avoidance of doubt the country in which they live. The identities of the medical witnesses are likewise protected to keep them free from intrusion as they go about their private and professional lives. In order, however, to put into the legitimate public domain all that the public needs to know, I shall set out the facts are fully as possible (indeed more fully than I would ordinarily do for law-reporting purposes).

The principle was also recognised in Airedale N.H.S. Trust v Bland [1993] AC 789, and it might be useful to cite two passages:-

Where no one is capable of giving consent for an adult patient who does not have the capacity to give consent himself for whatever reason, Lord Goff in Re F. seized upon the fact that:-

The current law is contained in the Children Act 1989. Each of the parents, or the mother if she is unmarried, has parental responsibility over the child. That is defined, perhaps rather unsatisfactorily, in Section 3 of the Act in these terms:-

I have added the emphasis to show the close link between parental right and duty. Failure to perform the duty may be a culpable omission. Lord Scarman went on to note that the parental right derives from parental duty and that is recognised in the common law. He referred at p. 185 A to Blackstone's Commentaries , 17th Ed. (1830) Volume 1, Chs. 16 and 17 where Blackstone:-

Insofar as these proceedings are brought under the inherent jurisdiction of the court, that is the test that governs. In any event the position is regulated by section 1(1) of the Children Act 1989 under which these proceedings are also brought. That provides:-

There are abundant examples of this happening. One such case is In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1424. There a child who was born suffering from Down's Syndrome and an intestinal blockage, required an operation to relieve the obstruction if she was to live more than a few days. If the operation were performed, the child might die within a few months but it was probable that her life expectancy would be 20-30 years. Her parents, having decided that it would be kinder to allow her to die rather than live as a physically and mentally disabled person, refused to consent to the operation. The local authority made the child a ward of court and, when a surgeon decided that the wishes of the parents should be respected, they sought an order authorising the operation to be performed by other named surgeons. Templeman L.J. said at p. 1423/4:-

Overriding control is vested in the court. This proposition is well established and has not been the subject of any challenge in this appeal. Because of the comment in the media questioning why the court should be involved, I add this short explanation. Long, long ago the sovereign's prerogative to protect infants passed to the Lord Chancellor and through him to the judges and it forms a part of the inherent jurisdiction of the High Court. The Children Act 1989 now contains a statutory scheme for the resolution of disputes affecting the upbringing of children. If a person having a recognisable interest brings such a dispute to the court, the court must decide it.

There is, however, this important safeguard to ensure that a child receives proper treatment. Because the parental rights and powers exist for the performance of their duties and responsibilities to the child and must be exercised in the best interests of the child,

Since the parents are empowered at law, it seems to me that their decision must be respected and in my judgment the hospital would be no more entitled to disregard their refusal than they are to disregard an adult patient's refusal. To operate in the teeth of the parents' refusal would, therefore, be an unlawful assault upon the child. I derive this from In Re R. (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11 where Lord Donaldson of Lymington M.R. said at p. 22:-

It should not need stating that the court cannot approve of a course of action which may be unlawful. The stark fact has to be faced in this case that to operate to separate the twins may be to murder Mary. It seems to me, however, that the question of what is in the best interests of the child is a discrete question from whether what is proposed to be done is unlawful. A patient in terminal decline, racked with pain which treatment may not be able fully to alleviate, may beg to die and it may be said - at least by some - that it is in his best interests that he should be allowed to do so, but that would not justify unlawfully killing him. In my judgment, although the nature of what is proposed to be done has a bearing on how one ascertains where the patient's best interests lie, the ascertainment of those interests is the first but a separate stage of the court's task. If the operation is in the best interests of a child patient, then the court can, as Stage 1 of the task which it has to undertake, override the parents' refusal and approve the operation but conditionally, always subject to and dependent upon the outcome of the second stage of the court's enquiry which is whether or not the carrying out of that operation would be lawful.

I would not wish to leave this topic without saying firmly that the notions expressed in earlier times that Siamese twins were "monsters" is totally unacceptable, indeed repugnant and offensive to the dignity of these children in the light of current medical knowledge and social sensibility. I deprecate any idea of "monstrous birth".

Here Mary has been born in the sense that she has an existence quite independent from her mother. The fact that Mary is dependent upon Jodie, or the fact that twins may be interdependent if they share heart and lungs, should not lead the law to fly in the face of the clinical judgment that each child is alive and that each child is separate both for the purposes of the civil law and the criminal law.

In the face of that evidence it would be contrary to common-sense and to everyone's sensibilities to say that Mary is not alive or that there are not two separate persons. It is, therefore, unnecessary to examine the law in any depth at all. In one of the early cases, R. v Poulton (1832) 5 C. & P. 329 Littledale J. in his summing-up to the jury in a murder trial stated:-

There is no unanimity of view in answer to the hypothetical question: if Mary had not been joined to Jodie, would she have been born alive? The neonatologist said:-

All parties took for granted in the court below that Mary is a live person and a separate person from Jodie. In the literature which was placed before us, some commentators had questioned whether this was the right approach to adopt. Consequently we invited counsel to address the question. Before dealing with the law, I should set out the facts, including further material placed before us by the hospital on this particular point.

I will deal separately with the problems that will or may arise in the parents or others giving care to Jodie but in the context of the argument which has dominated this case, namely the sanctity of life and the worthwhileness of life, it seems to me impossible to say that this operation does not offer infinitely greater benefit to Jodie than is offered to her by letting her die if the operation is not performed.

The salient facts are these. The operation itself carries a negligible risk of death or brain damage. On the contrary the operation is overwhelmingly likely to have the consequence that Jodie's life will be extended from the period of 3-6 months or a little more to one where she may enjoy a normal expectancy of life. Prolonging her life is an obvious benefit to her. In general terms, she will live a normal or fairly normal life. Her present intellectual functioning is good and there is no reason to think that she will not have the mental capacity fully to enjoy her life. There is every chance that she will walk reasonably normally though future operations cannot be ruled out. She will have her own bladder and should be capable of controlling it. There is no certainly about bowel control though it is interesting to note that the opinion of Great Ormond Street is hopeful in this respect. At worst she will have to wear a colostomy bag. She is expected to be capable of satisfactory sexual functioning. The judge's fundings are amply confirmed by (1) the report from the Great Ormond Street Hospital which must carry great weight with the court because it is independent and because they are world-recognised experts and (2) the spinal surgeon's report both of which are set out in the discussion on Jodie's prognosis.

Mr Taylor, on the parents' behalf, faces an uphill struggle to persuade this court that Johnson J. was wrong to find that the operation would be in Jodie's best interests, and to be fair to him, he recognises the difficulty. There was abundant evidence before the judge to justify his conclusion which could not be attacked on appeal unless it was plainly wrong, that is to say unless it fell outside the generous ambit within which reasonable disagreement is possible. Far from being plainly wrong, Johnson J. was in my judgment plainly right to conclude that the operation would be in Jodie's best interest.

Even so, a distinction may be drawn between (i) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (ii) cases such as the present in which, so far as the living patient is concerned, the treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition. In both classes of case, the decision whether or not to withhold treatment must be made in the best interests of the patient. In the first class, however, the decision has to be made by weighing the relevant considerations. For example, in In Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33, the approach to be adopted in that case was stated by Taylor L.J. as follows, at p. 55:

Thirdly, and as a corollary to the second principle, it cannot be too strongly emphasised that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life."

It seems that there is no reported authority, whether before or after 1989, where this or any similar question has arisen between a child and a parent who is herself a child ...

In my judgment, therefore, we are thrown back upon the words of s 1(1) of the 1989 Act. I can think of no reason why Parliament should have intended, when a question with respect to the upbringing of two children is before the court, that the court should regard one child's interests as paramount to that of the other. Accordingly, in my judgment, while the welfare of M and R, taken together is to be considered as paramount to the interests of any adults concerned in their lives, as between themselves the court must approach the question of their welfare without giving one priority over the other. You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child - and in particular those listed in s 1(3) - the result may come down in favour of one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children."

Where the court is faced with what appears to be an impossibility, it must try and give the statutory provision such meaning as it can sensibly bear, having regard to any other provisions of the Act which may throw light on the intention of the legislature.

However, for whatever reason, the draughtsman of the 1989 Act did not adopt the Law Commission's recommendations on this point, and we have to resolve the dilemma ourselves.

The Court of Appeal had proceeded differently: see the report in [1993] 1 F.L.R. 883. The Court of Appeal considered that the upbringing of both mother and daughter was involved and that section 1(1) of the Act governed the position. Balcombe L.J. said at p. 890-2:-

There is no clear authority on the point. In Birmingham City Council v H. (A Minor) [1994] 2 AC 212 the House of Lords was invited to express its opinion of this question but was able to avoid doing so. In that case the local authority applied for a care order in respect of a young baby. The mother was only 15 and was a "child" herself. Application was made pursuant to Section 34(4) of the Children Act 1989 for an order authorising the local authority to refuse contact between the baby and the mother. No conflict arose because the question to be determined by the court related to the baby's upbringing and it was the baby's welfare that was to be the court's paramount consideration, even where the mother herself was a child in care. Section 34(3) enabled the court to "make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person". Lord Slynn of Hadley said at p. 222:-

In the course of argument I speculated that Mary's interests may not be overborne and that consequently approval for the operation can not be given. Miss Parker Q.C. on Jodie's behalf submits very strongly that it can. She submits that judges in the Family courts are frequently presented with a clash of interests between children whose upbringing they have to regulate and that when that arises the judges balance the interests of one against the other and choose the least detrimental alternative. So they do, but is it right that they do so and can one's right to life be traded against another's?

I have found this a very difficult question to answer. Subject to having regard to the parents' wish, which I will consider shortly, the operation will be in Jodie's interests but not in Mary's. Can that conflict be resolved and if so how?

This is a terribly cruel decision to force upon the parents. It is a choice no loving parent would ever want to make. It gives me no satisfaction to have disagreed with their views of what is right for their family and to have expressed myself in terms they will feel are harshly and unfairly critical of them. I am sorry about that. It may be no great comfort to them to know that in fact my heart bleeds for them. But if, as the law says I must, it is I who must now make the decision, then whatever the parents' grief, I must strike a balance between the twins and do what is best for them.

This is a real and practical problem for the family, the burden of which in ordinary family life should not be underestimated. It may seem unduly harsh on these desperate parents to point out that it is the child's best interests which are paramount, not the parents'. Coping with a disabled child sadly inevitably casts a great burden on parents who have to struggle through those difficulties. There is, I sense, a lack of consistency in their approach to their daughters' welfare. In Mary's case, they are overwhelmed by the legitimate, as I have found it to be, need to respect and protect her right to life. They surely cannot so minimise Jodie's rights on the basis that the burden of possible disadvantage for her and the burdens of caring for such a child for them can morally be said to outweigh her claim to the human dignity of independence which only cruel fate has denied her.

It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for a difference of view between the parent and the judge. In both situations it is the duty of the judge to allow the court's own opinion to prevail in the perceived paramount interest of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be that inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature."

Hence I am in no doubt at all that the scales come down heavily in Jodie's favour. The best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage even if that has to be at the cost of the sacrifice of the life which is so unnaturally supported. I am wholly satisfied that the least detrimental choice, balancing the interests of Mary against Jodie and Jodie against Mary, is to permit the operation to be performed.

The analytical problem is to determine what may, and what may not, be placed in each scale and what weight is then to be given to each of the factors in the scales.

I would grant permission for the operation to take place provided, however, what is proposed to be done can be lawfully done. That requires a consideration of the criminal law to which I now turn.

"It must also be borne in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention. ... Together with Article 3 ["No one shall be subjected to torture or to inhuman or degrading treatment or punishment"], it also enshrines one of the basic values of the democratic societies making up the Council of Europe "

It is against this background that I turn to the four words or phrases whose meaning has to be explored in this case: "unlawfully", "kills", "any reasonable creature", "with intent to kill". I will consider first the words "any reasonable creature".

Is Mary a reasonable creature?

For the reasons given by Ward LJ and Robert Walker LJ, with which I agree, I am satisfied that Mary's life is a human life that falls to be protected by the law of murder. Although she has for all practical purposes a useless brain, a useless heart and useless lungs, she is alive, and it would in my judgment be an act of murder if someone deliberately acted so as to extinguish that life unless a justification or excuse could be shown which English law is willing to recognise.

In recent editions of Archbold, including the 2000 Edition, the editors have suggested that the word "reasonable" in Coke's definition (which they wrongly ascribe to Lord Hale in para 19.1) related to the appearance rather than the mental capacity of the victim and was apt to exclude "monstrous births". Spurred on by this suggestion, and because the present case broke so much novel ground, we explored with counsel some of the thinking of seventeenth century English philosophers in an effort to ascertain what Coke may have meant when he used the expression "any reasonable creature" as part of his definition. We had in mind their absorbing interest in the nature of "strange and deformed births" and "monstrous births" (see Thomas Hobbes, Elements of Law, II.10.8, and John Locke, An Essay Concerning Human Understanding, III.III.17, III.VI.15 and 26 and III.XI.20).

In Attorney-General's Reference (No.3 of 1994) [1998] AC 245 Lord Mustill referred at p 254F to another statement in Coke's Institutes, not mentioned in that passage in Archbold, where after referring to prenatal injuries which lead to the delivery of a dead child, Coke writes (Co Inst Pt III, Ch.7, p 50):

"if the childe be born alive, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive".

In these circumstances I have no hesitation in accepting the submission by Miss Davies QC (whose assistance, as the friend of the court, was of the greatest value), which was in these terms:

"In 'The Sanctity of Life and the Criminal Law' (1958), Professor Glanville Williams stated at p 31:

'There is, indeed some kind of legal argument that a 'monster' is not protected even under the existing law. This argument depends upon the very old legal writers, because the matter has not been considered in any modern work or in any court judgment.'

After discussing the meaning of the word 'monster' (which might originally have connoted animal paternity) he states at pp 33-34:

'Locked (Siamese) twins present a special case, though they are treated in medical works as a species of monster. Here the recent medical practice is to attempt a severance, notwithstanding the risks involved. Either the twins are successfully unlocked, or they die' (emphasis added).

It is implicit in this analysis that the author is of the view that 'Siamese' twins are capable of being murdered and the amicus curiae supports this view.

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. Whatever might have been thought of as 'monstrous' by Bracton, Coke, Blackstone, Locke and Hobbes, different considerations would clearly apply today. This proposition might be tested in this way: suppose an intruder broke into the hospital and stabbed twin M causing her death. Clearly it could not be said that his actions would be outside the ambit of the law of homicide."

Modern English statute law has mitigated the prospective burden that might otherwise fall on the parents of severely handicapped children and their families if they are willing to avail themselves of its protection at any time up to the time the child (or children) is born. Section 1(1)(d) of the Abortion Act 1967, as substituted by Section 37(1) of the Human Fertilisation and Embryology Act 1990, provides:

"Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith 

..

that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be severely handicapped".

Once a seriously handicapped child is born alive, the position changes, and it is as much entitled to the protection of the criminal law as any other human being. The governing principle is sometimes described as the universality of rights. In the Canadian case of Perka v The Queen 13 DLR (4th) 1 Wilson J said at p 31 that the principle of the universality of rights demands that all individuals whose actions are subjected to legal evaluation must be considered equal in standing.

It follows that unless there is some special exception to which we can have recourse, in the eyes of the law Mary's right to life must be accorded equal status with her sister Jodie's right to life. In this context it is wholly illegitimate to introduce considerations that relate to the quality, or the potential quality of, each sister's life.

The meaning of the word "kills"

I turn now to the word "kills" in the definition of murder. In the Tony Bland case ( Airedale NHS Trust v Bland [1993] AC 789) the House of Lords was much exercised with the question whether the cessation of medical treatment and care to a patient who had been in a persistent vegetative state for three years constituted an intentional killing of that patient for the purposes of the law of murder. Lord Goff identified what he described as a crucial distinction in these terms at p 865:

"I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding the treatment or care or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg v Cox (unreported), 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia  actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law."

In the Tony Bland case the House of Lords was satisfied that the cessation of life-prolonging treatment or care could not be categorised as a positive act for the purposes of the law of murder, and since on the facts of that case the doctors owed no duty to the patient to prolong his life (since that course, the House of Lords held, would not be in their patient's best interests), they could not be found guilty of a culpable omission to act, either.

It was this distinction between acts and omissions which the judge had in mind when he held that it would be lawful to perform the proposed operation. He explained his thinking in the long passage which Ward LJ has recited fully in his judgment. He believed, in short, that the proposed operation was not unlawful because it did not represented a positive act but merely the withdrawal of Mary's blood supply.

On the hearing of the appeal only Mr Whitfield QC sought to persuade us to uphold the judge's approach. I am satisfied that the judge's approach was wrong. The proposed operation would involve a number of invasions of Mary's body, in the process of identifying which organ belonged to which child, before the positive step was taken of clamping the aorta and bringing about Mary's death. These acts would bear no resemblance to the discontinuance of artificial feeding sanctioned by the House of Lords in the Tony Bland case. They would be positive acts, and they would directly cause Mary's death.

The intention to kill

Next, the words "intent to kill". There is a technical difficulty about one aspect of the meaning of "intention" in this context. It seems to me that the best way to describe it is to start with an extract from the Law Commission's 1993 report on Offences Against the Person and General Principles, Law Com. No 218 at pp 8-10:

"7.1 Clause 1(a) of the Criminal Law Bill [at p 90 of the report] provides for the purposes of the offences in Part I of the Bill that

'a person acts "intentionally" with respect to a result when 

it is his purpose to cause it; or

although it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.'

..

7.4 In all but the most unusual cases, courts and juries will only be concerned with the basic rule in clause 1(a)(i) of the Criminal Law Bill: that a person acts intentionally with respect to a result when it is his purpose to cause that result.

7.5 The concept of purpose is ideally suited to express the idea of intention in the criminal law, because that law is concerned with results that the defendant causes by his own actions. These results are intentional, or intentionally caused, on his part, when he has sought to bring them about, by making it the purpose of his acts that they should occur

7.6 .[I]n almost all cases when they are dealing with a case of intention, courts will not need to look further than paragraph (i) of clause 1(a). Paragraph (ii) is however aimed at one particular type of case that, it is generally agreed, needs to be treated as a case of 'intention' in law, but which is not covered by paragraph (i) because the actor does not act in order to cause, or with the purpose of causing, the result in question ..

7.7 The point was formulated by Lord Hailsham of St Marylebone in R v Hyam [1975] AC 55, 74. A person must be treated as intending 'the means as well as the end and the inseparable consequences of the end as well as the means'. 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. The other result may be a pre-condition; as where D, in order to injure P, throws a brick through a window behind which he knows P to be standing; or it may be a necessary concomitant of the first result; as where D blows up an aeroplane in flight in order to recover on the insurance covering the cargo, knowing that the crew will inevitably be killed. D intends to break the window and he intends the crew to be killed.

7.8 There is, of course, no absolute certainty in human affairs. D's purpose might be achieved without causing the further result; P might fling up the window while the brick is in flight; the crew might make a miraculous escape by parachute. These, however, are only remote possibilities, as D (if he contemplates them at all) must know. The further result will occur, and D knows that it will occur, 'in the ordinary course of events'. This expression was used in Clause 18 of the [Law Commission's 1989 Draft Criminal Code Bill] to express the near-inevitability, as appreciated by the actor, of the further result."

In paragraph 7.2 of its report the Law Commission touched on some of the problems that existed in 1993 in this corner of the law. These problems were vividly described by Lord Steyn in his speech in the recent case of R v Woollin [1999] 1AC 82 at pp 90E-93F, with which the other members of the House of Lords agreed. Apart from mentioning at p 91A the "state of disarray" into which the House of Lords had plunged the law of murder in the case of R v Hyam [1975] AC 55, it is not necessary to go into any further detail about these problems. Suffice it to say that Lord Steyn restated the law along the lines suggested by the Law Commission six years earlier. The effect of his speech at p 96B-H is that in this rare type of case a judge should direct the jury in accordance with the following principles:

"Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen."

Now that the House of Lords has set out the law authoritatively in these terms, an English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end, because her death would be the virtually certain consequence of their acts, and they would realise that for all practical purposes her death would invariably follow the clamping of the common aorta.

The doctrine of double effect

We received interesting submissions from Mr Owen QC and Mr Whitfield in which they suggested that the doctrine of double effect would relieve the surgeons of criminal responsibility in these circumstances. This doctrine permits a doctor, in the best interests of his or her patient, to administer painkilling drugs in appropriate quantities for the purpose of relieving that patient's pain, even though the doctor knows that an incidental effect of the administration of these drugs will be to hasten the moment of death. In his speech in Airedale NHS Trust v Bland, Lord Goff, while describing the doctor's duty to act in the best interests of his patient, said at p 867C-E:

"It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable."

In re J [1991] Fam 33 Lord Donaldson MR identified the relevant principles in these terms at p 46C-D:

"What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so."

Mr Whitfield relied on these dicta in support of his argument that what matters in this context is the surgeon's "primary purpose" (a phrase used by Ognall J in summing up to the jury in R v Cox 12 BMLR 38), and that the fact that Mary's accelerated death would be a secondary effect of the surgeon's actions would not justify his conviction for murder. He also referred us to the passage at pp179-180 in an essay by Professor Ashworth, Criminal Liability in a Medical Context: the Treatment of Good Intentions, which is published in Harm and Culpability (edited by AP Simester and ATH Smith, Oxford, 1996). Mr Whitfield summarised Professor Ashworth's argument as follows:

(i) the true meaning of intention is purpose;

(ii) one may purpose ends or means;

(iii) one does not purpose a side-effect;

(iv) therefore a consequence, even if prohibited, is not intended if it is a side effect.

Mr Owen QC, for his part, referred us to a passage in the 2nd Edition of Medical Law, in which Professors Ian Kennedy and Grubb criticise the doctrine of double effect in so far as it is advanced as negating the necessary elements of intention or causation for the crime of murder, saying at p 1207:

"The more appropriate analysis is as follows: the doctor by his act intends (on any proper understanding of the term) the death of his patient and by his act causes (on any proper understanding of the term) the death of his patient, but the intention is not culpable and the cause is not blameworthy because the law permits the doctor to do the act in question."

It is not necessary for the purpose of this case to decide authoritatively whether this is the correct analysis, answering as it does the anxieties about the manipulation of the law of causation expressed by Lord Mustill in Airedale NHS Trust v Bland [1993] AC 789 at pp 895D-896B. There are certainly some powerful dicta in support of a proposition that if a surgeon administers proper surgical treatment in the best interests of his or her patient and with the consent (except in an emergency) of the patient or his or her surrogate, there can be no question of a finding that the surgeon has a guilty mind in the eyes of the criminal law: see in particular Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, per Lord Fraser of Tullybelton at pp 174G-175A and Lord Scarman at p 190F-G. The reason why it is not necessary to decide these matters now is that the doctrine of double effect can have no possible application in this case, as the judge rightly observed, because by no stretch of the imagination could it be said that the surgeons would be acting in good faith in Mary's best interests when they prepared an operation which would benefit Jodie but kill Mary.

In this context it is relevant to quote the second and third overarching moral considerations identified by the Archbishop of Westminster in his written submission:-

"(b) A person's bodily integrity should not be involved when the consequences of so doing are of no benefit to that person; this is most particularly the case if the consequences are foreseeably lethal.

(c) Though the duty to preserve life is a serious duty, no such duty exists when the only available means of preserving life involves a grave injustice. In this case, if what is envisaged is the killing of, or a deliberate lethal assault on, one of the twins, Mary, in order to save the other, Jodie, there is a grave injustice involved. The good end would not justify the means. It would set a very dangerous precedent to enshrine in English case law that it was ever lawful to kill, or to commit a deliberate lethal assault on, an innocent person that good may come of it, even to preserve the life of another".

It is of interest to note in this context that when the Catholic nurses at the Children's Hospital in Philadelphia consulted their archdiocesan authorities in a similar case in 1977 (with the sole distinguishing factor that the parents of the "sacrificed" child were willing to consent to the operation once they had received favourable rabbinical advice) the comfort they received was based on the double effect doctrine. It was argued that the tying of the carotid artery was done not to terminate the life of the sacrificed twin but to preserve the life of the other twin by protecting it from the poisons that would built up in the sacrificed twin's blood after its death: see Siamese Twins: Killing One to Save the Other, by George J Annas (Hastings Center Report, April 1987, 27 at p 28) and The Ethics of Caring for Conjoined Twins, by David C Thomasma and others (Hastings Center Report, July-August 1996, 4 at p 9). I do not consider that this method of applying the doctrine of double effect would have any prospect of acceptance in an English court.

It follows from this analysis that the proposed operation would involve the murder of Mary unless some way can be found of determining that what was being proposed would not be unlawful. This, the fourth and final part of the investigation, is far the most difficult. It is worth noting at the outset that Miss Davies supported the contentions of Mr Whitfield and Mr Owen to the effect that what was proposed would not be unlawful. They were opposed by Mr Taylor (for the parents) and Mr Harris QC (instructed by the Official Solicitor on behalf of Mary). At the close of his final submissions on behalf of Mary, however, Mr Harris, acting on the Official Solicitor's express instructions, took us back to the final page of his original written argument to this court, which had ended in these terms:

"It is difficult to accommodate the proposed treatment which, notwithstanding the above comments, it is recognised the Court may well consider to be desirable, within the framework of established legal principle. It might be argued that the basic principles of medical law cannot be applied to these facts. Existing case law is based upon the presumption of bodily integrity. John Locke's assertion that "every Man has a Property in his own Person. This no Body has any Right to but himself" (Two Treatises of Government, 1690) which underpins much of the moral dialogue in this area is difficult to apply in the case of conjoined twins. Both twins' physical autonomy was compromised at birth with the result that they now have fundamentally inconsistent interests and needs. In these circumstances, the Court may wish to explore the possibility of a development of the law to enable a doctor lawfully to undertake surgery to preserve the life and achieve the independence of one twin even though that may result in the death of the other provided that:

(i) The actions of the doctor viewed objectively constitute a proportionate and necessary response to the competing interests viewed as a whole; and

(ii) Such actions are approved in advance by the Court.

How any development of the law in this area might be reconciled with M's best interests and right to life is a question which it is easier to ask than answer."

This explicit encouragement by the Official Solicitor that we should explore the possibility of developing the law so as to enable such surgery to be undertaken lawfully was not at all unwelcome. We pointed out repeatedly to Mr Taylor and Mr Harris during the course of argument that if their contentions were correct, no separation surgery which would inevitably involve the sacrifice of one conjoined twin could ever lawfully take place, however ardently their parents wished one of their children to survive, and however severely compromised the condition of the other twin. It would also follow, if their arguments based on the effect of Article 2 of the European Convention on Human Rights (bolstered on this occasion by the written arguments of Mr David Anderson QC on behalf of the Pro-Life Alliance) are well-founded, that no separation surgery involving the sacrifice of a conjoined twin could take place in any of the member states of the Council of Europe. Mr Taylor and Mr Harris accepted, realistically, that this was indeed the effect of their submissions.

The doctrine of necessity

We received some interesting and powerful submissions about the doctrine of necessity, and the ways in which it might be called in aid to justify the operation proposed by the doctors. Although for many years cases involving pleas of necessity were notable for their absence from our caselaw, the doctrine has recently been given a new lease of life by Lord Goff of Chieveley, first in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and more recently, in a speech with which the other members of the House of Lords agreed, in R v Bournewood Community and Mental Health NHS Trust ex parte L [1999] 1 AC 458.

This doctrine is so obscure, and it has featured so seldom in our caselaw in the criminal courts, that I must describe it in considerable detail, and identify the problems it throws up, before I go on to decide whether it is permissible to apply it to the facts of the present case.

In In re F Lord Goff said at p 74A-C in the context of the law of tort:

"That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man's property in the public interest  for example (in the days before we would dial 999 for the fire brigade) the destruction of another man's house to prevent the spread of catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another's property to save his own person or property from imminent danger  for example, when he entered upon his neighbour's land without his consent, in order to prevent the spread of fire onto his own land."

Lord Goff then went on to consider a third group of cases, also founded upon the principle of necessity, which were concerned with actions taken by someone as a matter of necessity to assist another person without his consent. We are not, however, concerned in the present case with this application of the doctrine, because the law confers on the parents of an infant child the authority to consent on her behalf, and because there is also the residual right of consent vested in the court.

In the Bournewood case Lord Goff had recourse to this doctrine again when holding that doctors were entitled to rely on it as the basis for their authority to care for compliant incapacitated patients of adult years and treat them without their consent. At the end of his speech in that case, he mentioned some old cases which authorised (in so far as this was shown to be necessary) the detention of those who were a danger, or potential danger, to themselves or others. He added (at p 490 C-D):

"I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations  in contract (see the cases on agency of necessity), in tort (see In re F (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject) and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law".

Public and private necessity in the criminal law

In the present case we are concerned with what is said by some of those who appeared before us to be a case of private necessity in the eyes of the criminal law. Bracton, writing in the thirteenth century On the Laws and Customs of England (Selden Society Edition 1968, at Vol 2, 340-341) identified this type of necessity, in the context of the law of homicide, in these terms:

"Of necessity, and here we must distinguish whether the necessity was avoidable or not; if avoidable and he could escape without slaying, he will then be guilty of homicide; if unavoidable, since he kills without premeditated hatred but with sorrow of heart, in order to save himself and his family, since he could not otherwise escape [danger], he is not liable to the penalty for murder."

Five hundred years later the same concept of necessity, which still forms part of our law today, was expressed as follows by Lord Hale in his Pleas of the Crown Vol I, 51:

" .but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant; for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderamine inculpatae tutelae as shall be further shewed, when we come to the chapter of homicide se defendendo."

Later in the same volume Hale identifies two kinds of necessity which justify homicide: necessity which is of a private nature, and the necessity which relates to the public justice and safety (with which we are not here concerned). He added (at p 478):

"The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these enquiries:

(1) What may be done for the safeguard of a man's life ..

As touching the first of these, viz. homicide in defence of a man's own life, which is usually called se defendendo

..

Homicide se defendendo is the killing of another person in the necessary defence of himself against him that assaults him."

Blackstone, in Volume IV of his Commentaries on the Laws of England, had recourse to the law of nature as the source of a person's authority to use proportionate force in self-defence, saying at p 30:

"In such a case [viz. a violent assault] he is permitted to kill the assailant, for there the law of nature, and self-defence its primary canon, have made him his own protector."

During the seventeenth century there were suggestions that the right of self-preservation extended beyond the right to use appropriate force in self-defence. Thus in his Elements of the Common Laws of England (1630) Lord Bacon wrote:-

"Necessity is of three sorts  necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of causation of life; if a man steal viands to satisfy his present hunger this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable".

Similar sentiments appear in Thomas Hobbes's Leviathan at p 157:

"If a man by the terror of present death, be compelled to doe a fact against the Law, he is totally Excused, because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory; yet a man would reason thus, if I doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained; Nature therefore compels him to the fact.

When a man is destitute of food, or other thing necessary for his life, and cannot preserve himselfe any other way, but by some fact against the law; as if in a great famine he take the food by force, or stealth, which he cannot obtaine for mony nor charity; or in defence of his life, snatch away another mans Sword, he is totally Excused, for the reason next before alledged."

Both these extensions of the doctrine of necessity have been authoritatively disapproved as propositions of English law. For the disapproval of the idea that in order to save himself a man is entitled to deprive another of the place of safety he has already secured for himself, see R v Dudley and Stephens (1884) 14 QBD 273 per Lord Coleridge CJ at pp 285-6 ("if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day") and R v Howe [1987] 1 AC 417 per Lord Hailsham of St Marylebone LC at p 431E, to similar effect. For the equally strong disapproval of the idea that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft, see Southwark LBC v Williams [1971] 1 Ch 734 per Lord Denning MR at pp 743H-D and Edmund-Davies LJ at pp 745E-746C. See also on these topics Hale's Pleas of the Crown Volume I, 51 and 54 and Blackstone's Commentaries, Volume IV, pp 30 and 31-32.

Nineteenth century attempts at codifying the doctrine of necessity

Nineteenth century Governments appointed commissions from time to time with the laudable purpose of consolidating or codifying our criminal law. Inevitably, these commissions addressed issues related to the existence and scope of the doctrine of necessity. It is not at all surprising that they found them difficult to handle.

For example in 1839 the Commissioners on Criminal Law wrote (see Fourth Report of HM Commissioners on Criminal Law, Parliamentary Papers XIX) at p xxi:

"There are necessarily some occasions, which, upon general principles of criminal jurisprudence, and independently of the motive or state of mind of the party who causes the death control the generality of the abstract rules founded on mere intention, and which tend to justify or excuse, or to extenuate the act of homicide. Of the former class, that is, of those which serve to justify or excuse the act, the most present are those founded on a principle of necessity where the act is essential to the defence of a man's person or property. The rule as to the latter class, ie where the occasion saves to extenuate criminality is also founded on a mixed principle of necessity and policy."

In 1846, in the Second Report of HM Commissioners for Revising and Consolidating the Criminal Law ((1846) Parliamentary Papers), the Commissioners dealt with self-defence as a potential justification for homicide in Article 16 of their Draft Code, but they decided on policy grounds not to provide a more general defence of necessity. In a footnote to Article 19 they wrote:

"The treatises generally contain a provision justificatory of the homicide of an unoffending party committed in order to save the life of the accused, or rather because the accused reasonably thought that the homicide was indispensable for preserving his own life. We propose to omit any justification rule for these occasions. Independently of the question which has been much discussed by ancient and modern jurists of the right in foro conscientiae of a person depriving another of life under such circumstances, we conceive that there would be less inconvenience in leaving persons to the mercy of the Crown who have thus acted under circumstances of sudden and extreme peril, than in holding out protection to the general disposition of all persons to overrate the danger to which they are exposed, and to place too low an estimate on the life of another when placed in the balance against prospect of additional safety to themselves. The Indian Law Commissioners express themselves on this subject in the following terms: 'There are, as we have said, cases in which it would be useless cruelty to punish acts done under fear of death, or even of evils less than death. But it appears to us impossible to precisely define these cases; we have, therefore, left them to the Government, which, in the exercise of its clemency, will doubtless be guided in a great measure by the advice of the Court'."

When the Criminal Code Bill Commissioners took up the challenge in 1879 they were equally baffled by definitional difficulties, although they were readier to leave open the possibility of establishing a lawful justification based on necessity. They said:

"Ingenious men may suggest cases which though possible have not come under practical decision in courts of justice . We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case."

Sir James Stephen was one of these Commissioners, and his initial views on this elusive topic are to be seen in the second volume of his History of the Criminal Law of England, at pp 108-110. He began his discussion of the subject at p 108:

"Compulsion by necessity is one of the curiosities of law, and so far as I am aware is a subject on which the law of England is so vague that, if cases raising the question should ever occur the judges would practically be able to lay down any rule which they considered expedient. The old instance of the two drowning men on a plank large enough to support one only, and that of shipwrecked persons in a boat unable to carry them all, are the standing illustrations of this principle. It is enough to say that should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment."

After referring to the dilemmas created by cases where a boat will sink unless it is relieved of one or more of its passengers, he found some comfort in the judgment of Lord Mansfield in R v Stratton (21 St Tr 1224), from which he derived the proposition that it was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. He went on to say (at pp 109-110):

" [B]ut these cases cannot be defined beforehand, and must be adjudicated upon by a jury afterwards, the jury not being themselves under the pressure of the motives which influenced the alleged offenders. I see no good in trying to make the law more definite than this, and there would I think be danger in attempting to do so. There is no fear that people will be too ready to obey the ordinary law. There is great fear that they would be too ready to avail themselves of exceptions which they might suppose to apply to their circumstances".

He ended by saying that these considerations applied also to the case of a choice of evils. One of the two examples he gave in this context was of a ship so situated that the only possible way of avoiding a collision with another ship (which would probably sink one of both of them) involved running down a small boat.

The Queen against Dudley and Stephens

This was the legal background against which the case of R v Dudley and Stephens (1884) 14 QBD 273 was set. In AWB Simpson's Cannibalism and the Common Law (1984) the author described how the three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884, a year after Stephen's History of the Criminal Law of England was published. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship's boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). As part of the historical background of the case Mr Simpson describes in Chapter 5 of his book (gruesomely entitled "The Customs of the Sea") a large number of similar instances in the nineteenth century of shipwrecks leading to cannibalism, some of which were described by Samuel Plimsoll in 1875 in a parliamentary debate.

The law report shows how a jury at the Devon and Cornwall Assizes had found the facts of the case in a special verdict. The case was then ordered to be argued in London before a court of five judges. In giving the judgment of the court Lord Coleridge CJ considered earlier writings (including the judgment of a circuit court in Pennsylvania in United States v Holmes 26 Fed Cas 360 (1842)) about necessity being a possible justification for homicide before he concluded that the facts stated in the jury's verdict provided no legal justification for the homicide in the present case. His reasoning can be seen in two passages towards the end of his judgment (at pp 286-288):

"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' 

'So spake the Fiend, and with necessity,

The tyrant's plea, excused his devilish deeds.'

It is not suggested that in this particular case the deeds were 'devilish', but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment: and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it."

Sir James Stephen was not a member of the court, although he authorised Lord Coleridge to say that the language he had used about necessity in his History of the Criminal Law of England was not meant to cover a case like this. Three years later, in his Digest of the Criminal Law (1887), Stephen attempted a description of the doctrine of necessity in these terms at pp 9-11:

"An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.

The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body."

It is not necessary for present purposes to refer to the detail of the long footnote in which he commented, not always favourably, on the judgment of the court in R. v Dudley and Stephens.

That case has sometimes been taken as authority for the proposition that necessity can never under any circumstances provide a legal justification for murder. While it is true that a passage in the speech of Lord Hailsham in R v Howe [1987] 1 AC 417 at p 429C-D might be interpreted to this effect, in my judgment neither that passage nor a similar passage in Lord Mackay of Clashfern's speech at p 453 C-D displays any evidence that they had in mind a situation in which a court was invited to sanction a defence (or justification) of necessity on facts comparable to those with which we are confronted in the present case. I accept Miss Davies's submission that R. v Dudley and Stephens, endorsed though it was by the House of Lords in R. v Howe, is not conclusive of the matter.

Necessity: the recent studies by the Law Commission

We have also been shown how the Law Commission tackled this troublesome doctrine in the criminal law between 1974 and 1993. In 1974 a very experienced Working Party was brave enough to recommend codified proposals for a general defence of necessity (Law Commission Working Paper No 55 pp 38-9). Three years later the Commission itself retreated so far from this proposition that it recommended that there should be no general defence of necessity in any new Code, and that if any such general defence existed at common law it should be abolished (Law Com No 83 (1977), p 54). It felt that it would be much better if Parliament continued to create special defences of necessity, when appropriate. Because euthanasia was so controversial, and because the Criminal Law Revision Committee was engaged in work on offences against the person, the Commission thought it better to leave to that committee any questions relating to the provision of a defence in that area of the law.

This retreat, influenced by the responses it had received on consultation, particularly from practitioners (see pp 24-25), evoked a storm of protest from academic commentators (see, for instance, the articles entitled "Necessity" by Glanville Williams [1978] Crim LR 12 and "Proposals and Counter Proposals on the Defence of Necessity" by P.H.J Huxley [1978] Crim LR 141, and the powerful criticism (to the effect that the proposals represented "the apotheosis of absurdity") by Sir Rupert Cross in a Canadian university law journal cited by Professor Glanville Williams in a footnote on page 202 of the Second Edition of his Textbook on Criminal Law (1983).

Professor Williams returned to the topic of necessity in Chapter 26 of that book. He observed at p 602 that the main difficulty felt by the Law Commission appeared to have been in respect of certain "human rights", whereas the doctrine of necessity was an expression of the philosophy of utilitarianism. He referred, however, to a suggestion by an American writer, Paul Robinson, to the effect that the recognition of important values did not entirely exclude a defence of necessity. In the determination of cases where those values did not appear, their existence could not affect the outcome, and even where they did appear, they could be given special weight in estimating the balance of interests.

In his powerful Section 26.3 ("Necessity as a reason for killing") Professor Williams addressed the issues with which we are confronted in this case. He began his treatment of the subject by saying that many people believed in the sanctity of life, and consequently believed that killing was absolutely wrong. It was for this reason, he said, that the defence of necessity, if allowed at all, was given very narrow scope in this area. He distinguished private defence from necessity (although the two overlapped) on the grounds that (unlike necessity) private defence involved no balancing of values, while on the other hand private defence operated only against aggressors (who, with rare exceptions, were wrongdoers) whereas the persons against whom action was taken by necessity might not be aggressors or wrongdoers. In this context, he mentioned R v Bourne [1939] 1 KB 687 (where Macnaghten J had suggested in his summing up that there might be a duty in certain circumstances to abort an unborn child to save the life of the mother), as an example of the defence of necessity, even though it was a case not of homicide but of feticide.

Professor Williams came to the heart of the matter at p 604:

"Might this defence apply where a parent has killed his grossly malformed infant?

Doubtless not. It may of course be argued that the value of such an infant's life, even to himself, is minimal or negative, and that if parents are obliged to rear him they may be disabled from having another and normal child. But it is not a case for applying the doctrine of necessity as usually understood. The child when born, unlike the fetus, is regarded as having absolute rights. Besides, there is no emergency.

The usual view is that necessity is no defence to a charge of murder. This, if accepted, is a non-utilitarian doctrine; but in the case of a serious emergency is it wholly acceptable? If you are roped to a climber who has fallen, and neither of you can rectify the situation, it may not be very glorious on your part to cut the rope, but is it wrong? Is it not socially desirable that one life, at least, should be saved? Again, if you are flying an aircraft and the engine dies on you, it would not be wrong, but would be praiseworthy, to choose to come down in a street (where you can see you will kill or injure a few pedestrians), rather than in a crowded sports stadium.

But in the case of cutting the rope you are only freeing yourself from someone who is, however involuntarily, dragging you to your death. And in the case of the aircraft you do not want to kill anyone; you simply minimise the slaughter that you are bound to do one way or the other. The question is whether you could deliberately kill someone for calculating reasons.

We do regard the right to life as almost a supreme value, and it is very unlikely that anyone would be held to be justified in killing for any purpose except the saving of other life, or perhaps the saving of great pain or distress. Our revulsion against a deliberate killing is so strong that we are loth to consider utilitarian reasons for it.

But a compelling case of justification of this kind is the action of a ship's captain in a wreck. He can determine who are to enter the first lifeboat; he can forbid overcrowding; and it makes no difference that those who are not allowed to enter the lifeboat will inevitably perish with the ship. The captain, in choosing who are to live, is not gu