Published: Wed, 07 Mar 2018
R v Dudley and Stephens (1884) 14 QBD 273
The availability to the defence of necessity for murder.
The two defendants and a boy between the ages of seventeen and eighteen were cast away in an open boat at sea following a storm. The boat drifted in the ocean and was considered to be more than one thousand miles from land. After seven days without food and five without water, S suggested that lots should be drawn with the loser being put to death to provide food for the remaining two. Subsequently however, D and S colluded to the extent that the boy should be killed so that they could survive. On the twentieth day, with the agreement of S, D killed the boy and both the defendants ate him for the following four days until rescue. It was argued that the defendants believed that in the circumstances they would die unless the boy was killed.
The issue in this context was whether there was any justification in killing the boy in order for the defendants to survive. In other words, whether the defendants could plead that the killing was necessary and thereby give rise to a defence to murder.
The defence of necessity was not available as a defence to murder on these facts. It is not possible to justify the killing of one individual in order to save the life of another on the basis that the killing is necessary to do so. Although the judgment is generally accepted and followed (see Buckole v Greater London Council  Ch 655), the judgment implies that the jury’s finding that there was no greater justification for killing the boy than for any of the castaways, suggests that the unavailability of the defence may have resulted from the collusion between the defendants.
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