&i&Regina v Dudley & Stephens&/i& Anatomy of a Show Trial

摘要

At the centre of Regina v Dudley & Stephens , “Dudley & Stephens” is the defence of necessity and its place in a criminal law built on volitional conduct. At Roman law the defence arose first from the facts but was then contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law. From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute. The English Court in Dudley & Stephens was right to have seen this anomaly as being in need of correction but instead of correcting this in a practical manner, and manipulated the case so that a pronouncement of Victorian morality could be made. This was a prime example of Arnold’s observation that: “in the public trial we find the government speaking ex cathedra” 1 .