84-year-old woman whom he had injected with a fatal dose of narcotics when she was terminally ill. In his summing-up, Devlin J stated:
If the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten human life.
After 42 minutes’ deliberating, the jury returned a ‘not guilty’ verdict. Thus liability for murder can be avoided if beneficial medication is given, despite the certain knowledge that death will occur as a side effect.
Davies in his Textbook on Medical Law (1998) has argued that, although one can sympathise with judicial reluctance to see competent and highly regarded medical practitioners convicted of murder, the doctrine of dual effect is both illogical and inconsistent with English criminal law. If a doctor injects a severely ill patient with a powerful painkiller in the certain knowledge that the drug will cause death within a matter of minutes, under the ordinary principles of criminal law (laid down in the cases of Woollin and Nedrick) this doctor intended to kill. English law has tradition- ally excluded any considerations of motive in determining criminal responsibility.
The doctrine of ‘double effect’ was considered in the high-profile case of Re A (Children) which was concerned with Jodie and Mary who were conjoined twins. They each had their own vital organs, arms and legs. The weaker twin, Mary, had a poorly developed brain, an abnormal heart and virtually no lung tissue. She had only survived birth because a common artery enabled her sister to circulate oxygenated blood for both of them. An operation to separate the twins required the cutting of that common artery. Mary would die within minutes because her lungs and heart were not sufficient to pump blood through her body. The doctors believed that Jodie had between a 94 and 99 per cent chance of surviving the separation and would have only limited disabilities and would be able to lead a relatively normal life. If the doctors waited until Mary died naturally and then carried out an emergency separation operation, Jodie would only have a 36 per cent chance of survival. If no operation was performed, they were both likely to die within three to six months because Jodie’s heart would eventually fail.
The question to be determined by the Court of Appeal was whether the operation would constitute a criminal offence, and, in particular, the murder of Mary who would be killed by the operation. Looking at whether the doctors carrying out the operation would have the mens rea of murder, submissions were made to the Court of Appeal that the doctrine of double effect should relieve the surgeons of criminal responsibility. It was argued before the Court of Appeal that the surgeons’ ‘primary purpose’ in this case would be to save Jodie, and the fact that Mary’s death would be accelerated was a secondary effect which would not justify a conviction for murder. But the majority of the Court of Appeal felt the doctrine of double effect could not apply to these facts, where the side effect to the good cure for Jodie was another patient’s death for whom the act in question provided no benefit. They therefore found that the doctors would have ‘murderous intent’ if they carried out the operation, though they would avoid liability due to the defence of necessity (discussed at p. 391).
Re A (Children) (2001)
Key Case
Legal Principle
The double effect doctrine cannot apply when a different person receives the benefit of the act, to the
Sentence
Murder carries a mandatory sentence of life imprisonment under s. 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. In practice, most murderers are not required to stay in prison for the rest of their life but are released on licence after spending some time in custody. They can then be returned to prison if their behaviour upon release gives rise to concern.
In the recent past, the final decision as to when murderers should be released on licence lay with a politician, the Home Secretary. This was found to be in breach of the European Convention on Human Rights in the case of R (Anderson) v Secretary of State for the Home Department (2002). The Home Secretary, however, seems anxious to retain some control in this area. Provisions were added to the Criminal Justice Act 2003 under which the Home Secretary, through Parliament, lays down an appropriate sentence for different types of murderer. The aim is to achieve consist- ency in the sentencing of murderers. Under these provisions, judges are required to slot offenders into one of three categories according to the severity of their crime. For the first category, actual life will be served by those convicted of the most serious and heinous crimes: multiple murderers, child killers and terrorist murderers. For the second category, there is a starting point of 30 years. This category will include murders of police and prison officers and murders with sexual, racial or religious motives. For the third category, the starting point is 15 years. In addition, there are 14 mitigating and aggravating factors which can affect the sentence imposed.
There are presently 22 people serving whole-life tariffs in England and Wales, none in Europe and 25,000 in the United States (along with 3,500 people under sentence of death).