The Dudley Case & Necessity Defence

What is the maritime tradition associated with the Dudley case?

It is better for a couple of men to sacrifice themselves in order for the rest to survive, with the preferred method of drawing lots to determine selection.

What was the “necessity” in the Dudley case?

Dudley and Stephens killed the boy Richard Parker to sustain the existence of those remaining, they being all agreed the act was absolutely necessary and that Parker was already very weak.

Define necessity in a legal perspective, according to James Stephen in the Digest of the Criminal Law

An act which would otherwise be a crime may be excused if the accused can show that it was done only in order to avoid consequences which could not otherwise be avoided… that no more was done than reasonably necessary for that purpose.

What occurred after Dudley and the surviving sailors returned to land?

Sergeant Laverty heard their story and arrested them where they were brought before the magistrate court.

How do magistrate courts fit within court hierarchy?

Do not try murder cases—have to wait for the advisement of Treasury Solicitor.

How were the magistrates instructed to handle the Dudley case?

Instructed to proceed with prosecuting Dudley and Stephen due to previously failed prosecutions on similar facts around the commonwealth.

What was the public opinion that formed around the Dudley case?

That Dudley and Stephenson had done no wrong and acted entirely in accord with the customs of the sea.

How did Dudley and Stephenson plead at trial?

Pleaded not guilty by reason of necessity.

How did Arthur Charles, prosecution, argue the case?

Argued there was no defence of necessity written in law thus giving it no precedential authority; actus reus and mens rea were met and a criminal conviction was required.

How did the defence respond to prosecution’s witness testimonies from Laverty and Brooks regarding the actions on the lifeboat?

Cross-examined Brooks in a way that emphasized the dreadful conditions on the lifeboat, Parker’s failing health, and Brooks’ cannibalistic feeding later on.

How did the judge respond to the case?

Declared he would not hear more arguments of necessity as there was no law to support it; gave the jury the option of a guilty murder verdict or a special verdict that would leave applying the law to higher courts.

How did the jury find the case?

Found that if the men did not feed on Parker they would not have survived, that Parker was likely to die before them, and that the circumstances were dire; but that assuming necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men.

How did Lord Coleridge determine the case during sentencing?

It is not correct to say that there is an absolute necessity to preserve one’s life… who is to be the judge of this sort of necessity? The principle leaves the one who is to profit by it to determine the necessity which justifies deliberately taking another’s life to save their own.

What sentence did Dudley and Stephenson recieve?

Originally sentenced to hanging, yet were given mercy by Queen Victoria to six months’ imprisonment.

Why were Dudley and Stephenson’s sentences reduced?

In securing clarity about the law and ensuring that a necessity defence was not made available, judicial powers were prepared to offer mercy to this case.

In what other case has the defence of necessity come up?

R v. Perka; drug smugglers seeking shelter from a storm in Canadian waters when their ship was bound to sink.

How did Justice Dickson rule on necessity in R v. Perka?

The defence of necessity was available where its distinguishing feature was the moral involuntariness of the wrongful action.

How did the SCC rule regarding necessity in R v. Perka?

Smugglers could raise the defence of necessity as an excuse, not a justification, and established a three part test.

What was the three part test established by the SCC in response to R v. Perka?

In order for necessity to be argued, there must be imminent peril, no reasonable legal alternative, and proportionality (where the harm inflicted by breaking the law must be less than the harm avoided).

What was the R v. Latimer case?

Robert Latimer killed his daughter Tracy due to her severe cerebral palsy; he argued defence of necessity out of urgent need to eliminate his daughter’s pain.

What was the SCC’s decision regarding the Latimer case?

Ruled against Latimer as he failed to meet the requirements of a necessity defence; convicted of manslaughter and sentenced to 10 years imprisonment.

What case had a successful defence of necessity?

R v. Pleau, where Pleau committed the act of drunk driving to take his friend to the hospital after suffering a head injury.

How did the judge rule in Pleau’s case?

Believed that Pleau’s reasons for drunk driving were credible; there was imminent peril, he did not have enough time to find a reasonable alternative, and the harm of the crime was not more than the harm avoided.

How is the defence of necessity viewed in most jurisdictions?

Allowed but considered an excuse rather than a justification and involves strict applications and rare exceptions as justifying necessity may open the door to unnecessary lawlessness.