Murder by design: the 'feel-good factor' and the criminal law.

The much-publicised recent decision of the Court of Appeal in the case of the ischiopagus conjoined twins, Mary and Jodie, should be viewed with considerable alarm by criminal lawyers. We find the mood of the Court reminiscent of that in Airedale NHS Trust v. Bland1. There, too, the criminal law appeared to present an inconvenient obstacle to the result desired by all the courts involved. In the case of the twins, Re A (children) (conjoined twins: surgical separation)2, the courts have again, and again outside the context of a criminal trial, found the criminal law to be too unbending and inflexible for their purposes. The driving force behind both decisions appears to be to be seen to find a justification for the morally `soft option’, giving the impression that judges now want to leave their courts bathed in the gl ow of having been seen to do what feels good to the public at large. Criminal law may be left in total disarray in consequence, but the Court of Appeal appears remarkably unconcerned on that score. In Re A, Ward L.J. observed, “The search for settled legal principle has been especially arduous and conducted under real pressure of time”3. On one view, in fact, the settled principle was clear; the proposed operation would legally be murder. The only arduous aspect of this case from the Court’s point of view was that it was difficult to escape this apparently unwelcome conclusion. Nevertheless, it set itself the task of finding a way out, apparently so that all concerned (except the parents) could feel a comfortable sense of having saved a life4. The Court would not countenance an interpretation of the law which involved sitting back and watching the life of both twins