Should Necessity be a Defense to Murder? The Dudley and Stephens case

The focus of this paper is on determining whether necessity should be a defense to murder. In answering this I will examine the role of necessity as a defense, in the case of Dudley and Stephens vs. The Queen, in doing so I will also determine if the verdict in the case was correct. I believe that necessity can be used as a defense to murder, but not under the circumstances of the Dudley and Stephens case and that the verdict, guilty of murder was correct.

The Dudley and Stephens case can be summarized as follows. Thomas Dudley, Edward Stephens, Brooks, and a young English boy were stranded on a boat at sea. After twenty days with having survived on only two pounds of turnips and a small turtle which they had managed to catch, the boy, weakest of the group, was killed and eaten until four days later when they were rescued. A few of the following are points of consideration. After twenty days at sea suffering from starvation, the defendants may not have been of sound mind when they decided to murder the boy. The defendants had no idea when, if at all, they would be rescued. Had the defendants not eaten something they would not have survived four more days and that the boy was probably going to die before any of the others. If the others were to survive for much longer they would need to eat something.[1] This raises the question whether the defendants were justified in the murder of the boy because of the necessity to survive, or to a lesser extent should they be excused for their actions. It is important to now look at how the law should work and more specifically what role does justification and excuse has in law.

How the legal system should work is typically divided into two sides. Those who believe that the law should be followed to the letter of the law, and those who feel that the law should not be rigid and our sense of what is right and wrong should play a role in our determining guilt. I believe in the latter, for reasons discussed by Paul H. Robinson. He states, correctly, that “No such code…can accurately prescribe the correct conduct in all situations; it can only provide an approximation of society’s intuitive judgments.”[2] If one was to prescribe to the notion that the letter of the law was to be followed there would be many cases which are not specifically covered, yet are intuitively wrong. I believe Lord Justice Denning had a sound concept of the basis in which the legal system rests upon when stating, “In order that an act should be punishable, it must be morally blameworthy. It must be a sin.”[3] This does not mean I agree every time someone has committed a crime it is a sin, for such instances raised by Hart, as breaking a law designed for a particular economic scheme such as a state monopoly on road transport.[4] I do believe though that although morals may not play a role in determining a verdict in all cases, it should in murder cases such as the one we are investigating here.

It must be asked whether Dudley and Stephens did something morally wrong when they decided to kill the boy and eat him. This I feel can be answered by determining whether they were justified in their actions through necessity or not. If they were justified then they did nothing morally wrong and the verdict was incorrect, but if they were not justified, which I believe was the case, then they were immoral and the verdict was correct, unless they can show their action is somehow excusable.

I agree with what seems to be the widely held view, that an act which is justifiable is one in which no wrong has been committed. Best phrased by Robinson, “Justified behavior is correct behavior and therefore is not only tolerated but encouraged”[5] It does not seem to follow for me that, if someone must do something in order to survive, that act is therefore justifiable, and can be used as a defense that what they did should not be punished. For instance, if in order for myself to survive I must kill another person, who is of no threat to me, or I am certain to die, and I then kill that person; the necessity for my survival does not make my act something which should be encouraged, or tolerated in all cases. To put some innocent person’s life ahead of yours simply because it is necessary in order to survive is inherently something which should not be tolerated. If a hot air balloon can only hold one person and two are on board, and it is known for certain that by pushing the other out of the balloon, the pusher can survive; we should not tolerate the action of one being pushed over. Killing an innocent person to ensure your survival is not tolerated, because it is clearly wrong has been committed and such an act is therefore not justifiable.

What about the issue of cases which the person which must be murdered is not innocent, as is the case of self-defense? It seems to be that it is at least tolerable to allow someone to kill that person which has put an innocent person, into a state, which it is necessary to kill, in order to save the life which has been threatened. The aggressor in this instance is not innocent, and because it is tolerable to kill that person nothing wrong has occurred and such an act is therefore justified.

In the case of Dudley and Stephens, they killed an innocent boy in order to survive. Of the two categories just discussed their situation would fall under that off killing an innocent person knowing it will save your life. The boy did not himself threaten the others survival, their situation did. “…and it is not even suggested that his death was due to any violence on his part…”[6] He was killed because he was closest to death. Had they waited until he died naturally there would be no problem, but they did not. In addition to this, it should be noted at this point that it was not known for sure that the killing of this boy would ensure the others survival. The necessity of the situation was not known. Dudley and Stephens did not know if they would be saved at all. They did not know that by killing the boy they would be able to survive the four more days until they would be rescued.[7] All that they did know was that by killing the boy before they got too weak, they would be able to survive a little longer. It is wrong to kill someone so that you may live just a little longer. As Lord Coleridge states, “To preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it.”[8] I believe it is, in fact, the highest duty, in an instance where you must kill an innocent person to necessitate your own life, to sacrifice yourself. There are many cases in law, which reflect this duty, such as the one which Lord Coleridge stated of a ship sinking.[9] When a ship is sinking, although it may be necessary for you to get on a lifeboat to save your life, you cannot justifiably do so by pushing another person off the lifeboat. This has been a long-standing position, one which should not be dismissed. Dudley and Stephens were in a similar situation in which they had a duty to sacrifice their lives above killing an innocent person to save themselves. Just as wrong has been committed when a man pushes another off of a lifeboat, a wrong was committed when the English boy was killed. A defense cannot use necessity when it is the killing of an innocent person. The question though is whether a defense of necessity can be used in excusing the person.

Again I find that Paul Robinson has the best explanation of how excuses work in the legal system. When an excuse is used as a defense it is an acknowledgment that the act was wrong but that the person should not be punished because of a characteristic of the person which society feels should exclude him from punishment.[10] Necessity is sometimes used as a defense for excuse, if it can be shown that through the necessity to save one’s life, they are in the category which excludes someone from punishment. The common reasons for exclusion are if the person is, insane, under duress, or in self-defense.[11] None of these three reasons for excuse properly apply to the Dudley and Stephens case.

Of the three reasons the claim that the defendants acted in self-defense to save their lives applies the least. The boy did not put them into any danger. A self-defense excuse, in this case, could only be used if Dudley and Stephens did something against Mother Nature which put them into this situation. The boy was totally innocent in this case. A stronger reason for excusing the defendants would be that the defendants were insane at the time of the crime. The evidence does not suggest that the defendants were insane at the time though. The act of killing the boy was proposed, discussed and finally agreed upon.[12] This act was not rushed in a fit of insanity which may be excused; rather this action was planned and committed two days after it had been agreed upon.[13] It seems clear that no one involved was insane at the time. Were the defendants however under such a large amount of duress that killing one of them should be excused? I do not believe so. Again I would like to refer to the example of a sinking ship raised by Lord Coleridge.[14] If people in the past have been able to sacrifice themselves, instead of killing others to survive, and under equal if not greater duress, there is no reason to think that duress is substantial enough in this case to warrant an excuse. Those who go down with the ship are more certain of their death than the defendants were, and not only that but had those who went down with the ship killed someone to get onto a lifeboat, their survival was vastly more assured that the defendant’s fates were in the situation they were in. They did not know that they may have been saved the next day, or once killing the boy that it would last them until they were saved.

Some suggest that in a state of nature someone should be excused from their actions.[15] I do not entirely agree with this claim. I do agree however that, someone whose life has just been threatened by another and is in a state of nature, for this reason, the person can kill the other and not be held accountable. This is not because it is excused, but rather because it is justified. If I am put into a state of nature by no means of someone else, it is not justified, nor excusable to do whatever I wish, as those who are against the verdict in the Dudley and Stephens must believe. The only way in which it may be seen that Dudley and Stephens were even in a state of nature is because their lives were about to end. This seems to be an invalid way of determining if someone is in a state of nature or not. For example, can an old man on his deathbed be excused for killing his nurse, and doctor who did not cure him? It is clear that he cannot. Being close to death is not sufficient to be in a state of nature, you must also be acting on instincts, and which anyone in the same situation would do the same thing unequivocally.

The verdict of murder in the Dudley and Stephens case was correct. It was not justifiable because they killed an innocent person. In addition, their action should not be excused. They were in no danger from the boy, were clearly not insane from the fact that they planned out the action and deliberated about it, and were not under enough duress to excuse the killing of the innocent boy or any of them for that matter. They should have either drawn straws as was suggested, or wait until the boy died naturally.


[2] Paul H. Robinson, “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” UCLA Law Review Vol. 23, pg. 271

[3] Denning, “The Changing Law (London: Stevens, 1953), pg. 12

[4] H. L. A. Hart, “Legal Responsibility and Excuses” in Punishment and Responsibility (Oxford 1968), pg. 36

[5] Paul H. Robinson, “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” UCLA Law Review Vol 23, pg. 274

[6] The Queen v. Dudley and Stevens [1884] 14 Q.B.; pg. 276

[7] Ibid pg. 276

[8] Ibid pg. 281

[9] Ibid pg. 281

[10] Paul H. Robinson, “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” UCLA Law Review Vol 23, pg. 275

[11] Ibid pg.275


[13] Ibid

[14] The Queen v. Dudley and Stevens [1884] 14 Q.B.; pg. 281

[15] Perka v. The Queen [1984] 2 S.C.R. 232 (12 pages)