Criminal law Study pack

page 81

15 Extracts from Re A (children) [2000] 4 All ER 961

This material relates to the Criminal law subject guide, Chapter 7.

page 82 University of London International Programmes

Extracts from Re A (children) [2000] 4 All ER 961

Extract one [2000] 4 All ER 961, 994–6

Ward LJ: But first, a preliminary issue: is this a fused body of two separate persons, each
having a life in being?

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. 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:

Had Mary been born with very tiny lungs she could well have been born alive but would
then have been unresuscitatable.

The consultant radiologist said:

There would have been a significant risk of her dying of heart failure during the pregnancy.
Mary may well have deteriorated further and died in pregnancy, though I am unable to
quantify the risk of this.

The obstetrician felt that:

With the degree of abnormalities of the circulatory system I feel that probably Mary would
have been born dead.

The cardiologist expressed the firmest view:

If Mary and Jodie had been separate and Mary’s cardio-respiratory system in utero was as
weak as it is now, I think it is 100% likely she would have died at birth had she survived the
pregnancy.

Nevertheless he was equally emphatic about her present position:

I first reviewed Mary at 72 hours of age, (not at birth) and at that stage although her heart
was very large and weak, it was pumping, but contributing probably less than 10% of the
circulatory requirements of Mary.

The neonatologist was also clear:

When Mary was born the clinicians’ judgment was that she did have functions indicative
of life. Her heart was beating regularly, she did make some spontaneous respiratory efforts
and there were movements of all her limbs.

There was total unanimity about their individuality. The neonatologist said:

The twins are considered to be separate individuals. There are two heads, two brains
and at different times of the day and night they exhibit different states of wakefulness/
alertness and clearly their feeding abilities and patterns are very different.

The cardiologist said:

Although the twins share some common tissue, they each have separate hearts, brains,
etc, and thus medically I feel are separate individuals.

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 at 331, 172 ER 997 at 998 Littledale J in his summing-
up to the jury in a murder trial stated:

With respect to the birth, being born must mean that the whole body is brought into the
world. Whether the child was born alive or not depends mainly upon the evidence of the
medical men.
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In R v Handley (1874) 13 Cox CC 79 at 81 Brett J told the jury they would have to consider
whether the child was born alive:

i.e. whether it existed as a live child, breathing and living by reason of breathing through
its own lungs alone, without deriving any of its living or power of living by or through any
connection with its mother.

Brooke J, as he then was, in Rance v Mid-Downs Health Authority [1991] 1 All ER 801 at 817,
[1991] 1 QB 587 at 621, adopted a similar definition, saying that a child is born alive:

if, after birth, it exists as a live child, that is to say breathing and living by reason of its
breathing through its own lungs alone, without deriving any of its living or power of living
by or through any connection with its mother.

I think I can guarantee that when my Lord said that, he did not relate his observations
to Siamese twins.

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.
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’. “

Extract 2 [2000] 4 All ER 961, 1025 – 6

Brook LJ: 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 paragraph 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 (1640) part II, chapter 10, section 8, and
John Locke An Essay Concerning Human Understanding (1690), Book III, chapter III,
section 17, Book III, ch VI, section 15 and 26 and Book III, chapter XI, section 20).
In A-G’s Reference (No. 3 of 1994) [1997] 3 All ER 936 at 941–942, [1998] AC 245 at 254
Lord Mustill referred to another statement in Coke, not mentioned in that passage in
Archbold, where after referring to prenatal injuries which lead to the delivery of a dead
child, Coke writes (3 Co Inst 50): Լ 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
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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’ wins
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
s.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 R (1984) 13 DLR (4th) 1 at 31 Wilson J said 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.

Extract 3 [2000] 4 All ER 961, 1053-4

Walker LJ: In these circumstances this court has to start with some very basic
questions. Are these conjoined twins two persons or one in the eyes of the law? If
they are two persons, was Mary born alive? (If she was not born alive, there can be no
possible question of criminal liability for her unlawful killing.)

Mr Adrian Whitfield QC (appearing with Mr Huw Lloyd for the Healthcare Trust)
conceded that Jodie and Mary must be regarded as two separate persons, and he
was clearly right to do so. They have two brains and two nearly complete bodies,
despite the grave defects in Mary’s brain and her heart and lungs. There are cases of
incomplete (or heteropagus) twinning in which a child is born with abnormalities
which can be regarded as no more than a parasitic attachment. But it has not been and
could not be suggested that this case comes anywhere near that category.

The evidence also indicates that Mary, although incapable of separate existence, was
born alive. A ‘still-born’ child is defined (by the Births and Deaths Registration Act 1953,
s 41, as amended) as ‘a child which has issued forth from its mother after the twenty-
fourth week of pregnancy and which did not at any time after being completely
expelled from its mother breathe or show any signs of life’.

The medical notes from the hospital show that Mary was struggling to breathe,
although sadly in vain, when she and Jodie were brought from the operating theatre
into the recovery ward. Mr B (who would lead the operating team) was clear in
his oral evidence to this court that Mary was not still-born, but that she could not
be resuscitated and was not viable. Since her umbilical cord was cut she has been
dependent for life on her sister. The fact that she is alive as a distinct personality, but is
not viable as a separate human being, is the awful paradox at the centre of this case.
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The definition in the 1953 Act applies only for the purposes of that statute, but it
appears to correspond closely (except in the precision of the minimum 24-week term,
which is not relevant here) to the position at common law: see generally the full
historical review by my Lord, Brooke J (as he then was) in Rance v Mid-Downs Health
Authority [1991] 1 All ER 801 at 814–819, [1991] 1 QB 587 at 617–623. Mr David Harris QC
(appearing with Mr Andrew Hockton, instructed by the Official Solicitor, for Mary) drew
the court’s attention to some passages in the speeches in Airedale NHS Trust v Bland
[1993] 1 All ER 821, [1993] AC 789 (most notably in the speech of Lord Browne-Wilkinson
([1993] 1 All ER 821 at 878–879, [1993] AC 789 at 878-879) pointing out that as medical
science has developed new techniques and equipment for the prolongation of human
life, the law has had to redefine death (in terms of brain-stem death rather than
cessation of unaided cardiovascular functioning). Mr Harris submitted that just as the
law has had to redefine death, so it may have to redefine the concept of being born
alive. There are a number of difficulties in the way of that argument but they need not
be considered further since Mr Whitfield (and all other counsel who might have been
concerned to argue the contrary) have rightly conceded that Mary is a human being
and was born alive.

It hardly needs to be said that there is no longer any place in legal textbooks, any
more than there is in medical textbooks, for expressions (such as ‘monster’) which are
redolent of superstitious horror. Such disparagingly emotive language should never be
used to describe a human being, however disabled and dysmorphic.