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University of Southampton Research Repository Eprints Soton University of Southampton Research Repository ePrints Soton Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk University of Southampton School of Law PhD Thesis Permission To Die: An Examination of the Law and Morality of Battlefield Mercy Killing By Harry East Student no: 23831529 Supervisor: Professor Hazel Biggs ABSTRACT SCHOOL OF LAW Doctor of Philosophy Permission To Die: An Examination of the Law and Morality of Battlefield Mercy Killing By Harry East ‘Requests for battlefield euthanasia have, no doubt, occurred on battlefields as long as there have been battlefields. When men have taken up arms against one another, for whatever reason, there have always been those wounded who do not die immediately, but clearly cannot live for long, either because of their wounds or their circumstances. This can generate the desire to hasten their inevitable death, by both the wounded soldier as well as their comrades. These situations have probably occurred throughout history.’1 Mercy killings, those lethal actions carried out to relieve suffering, enacted by soldiers upon wounded enemy combatants during and after combat have been evidenced since the earliest recordings of armed conflict. An action which was taken from necessity due to inadequate medical knowledge and resources and also because of the existence of a less humane, but perhaps more practical society, are now considered as a criminal act. However, the act is often carried out from compassion and a feeling of sympathy towards the victim. 1 J Keegan, R Holmes & J Gau Soldiers: History of Men in Battle (Hamish Hamilton London 1985) 146 Meanwhile, public values, the common law and legislation dealing with euthanasia have all developed in the domestic civilian setting. Mercy killings have traditionally been dealt with in a confusing manner by the courts, using ill-fitting doctrines such as diminished responsibility to alleviate the criminal stigma placed upon the defendant. In other situations the application of the law has created uncertainty concerning the demarcation between whether an act constitutes murder or manslaughter. This uncertainty is compounded when the law developed to deal with civilian situations is juxtaposed on a mercy killing carried out by a soldier on another combatant in a battlefield setting. These situations present circumstances beyond the comprehension of civil domestic law. To implement it correctly requires a strained alignment between the pressures facing the soldier in combat and the pressures facing the defendant in peacetime, and there is a high likelihood that by doing so an injustice shall be served to the soldier and the victim. The potential trial processes faced by the soldier who has carried out a battlefield coup de grace are also questionable. To try the soldier in a civilian court is to place the deliberation of his actions into the hands of those who are not his military or cultural peers and who will judge his actions in accordance with a belief system contrary to those the defendant is indoctrinated with through his military training. However, implementing civil criminal law in a court martial alongside military discipline offences for crimes which represent serious operational misconduct, creates conflict between which values should be prioritised. The values of military discipline are in competition with the values of the criminal law. The court martial also carries with it the aura of unfairness due to its inherent bias, and there are concerns over its partiality. However, it also offers potentially the best place for the soldier to face trial because the case is deliberated upon by a Board of military personnel, his peers, who understand the unique culture of the soldier. By comparing the professional soldier with medical professionals, who are also involved with end of life decision making a better sense of the ‘wrongness’ of the action can be found. In the medical context consent can be used to legitimise many actions which may lead to death, and even without it the doctor may act in the patient’s best interests in a manner which avoids liability but results in death. The practice of double effect allows a physician to deliver pain relief even though there is a foreseeable consequence of death. The soldier’s actions exhibit many of the same motives but are never legally justified. The comparison serves to change the perception of the action, from merely legally wrong to morally legitimate. Although difficulties exist in arguing that mercy killing actions should be made legal, the wider consideration of the influences and behaviours can show that such actions can be morally legitimate and that it is not just to punish the soldier too harshly, nor is it just to hold him to account to laws which ill-fit the circumstances, be they domestic criminal laws, international criminal laws or military offence. Table of Cases Australia R v Nielsen (1990) 47 A Crim R 268 R v Walsh (1991) 60 A Crim R 419 Canada R v Generaux [1992] 1 SCR 259, 88 DLR (4th) 169 R v Ingebrigston (1990) 5 CMAR 87 United Kingdom A v United Kingdom (1984) 6 EHRR CD 140 Airedale NHS Trust v Bland [1993] AC 789, [1993] 1 ALL ER 821 Attorney General for Northern Ireland Reference (No. 1 of 1975) Beckford v R [1988] 1 AC 130 PC Bell v UK [2007] ECHR 41534/98 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 Blake v DPP [1993] Crim LR 586 Blyth v Bloomsbury Area Health Authority [1993] 4 Med LR 151 Cooper v UK [2003] ECHR 48843/99 (2002) 34 EHRR 1253 Chatterton v Gerson [1981] QB 432 Donohue v Stevenson (1932) AC 582 Findlay v United Kingdom [1997] 24 EHRR Gray v Thames Trains and others [2008] Ewca Civ 713 Mackay v R [1980] 2 SCR Manlik v DPP [1989] Crim LR 451 McCann v United Kingdom [1995] ECHR 31 MR Metropolitan Properties Co. (FGC) Ltd. v Lannon [1969] 1 QB 577 R v Adamako (1994) 3 All ER 79 R v Adams [1957] CLR 365 R v Ahluwalia [1992] 4 All ER 899 R v Beesley [2011] EWCA Crim 1021 R v Black [1995] T.L.R. 128 R v Boyd, Hastie and Spear; Sandy and Others [2002] UKHL 31 R v Brown [1993] Cr App 44 R v Chambers (1709) 1 Shower 6 R v Chesire [1996] Crim LR 595 R v Clegg [1995] 1 AC 489, [1995] 1 All ER 334 R v Cocker [1989] Crim LR 740 R v Court [1988] 2 All ER 221 R v Cox (1992) 12 BMLR 38 R v Croft [1944] KB 295 R v Donovan (1934) 25 Cr App R 1, [1934] All ER 207 R v Gilderdale [2010] Unreported R v Gladstone Williams (1984) 78 Cr App R 276 R v Helsham (1845) 2 C & K 53 R v Howe [1987] AC 417 R v Hyam [1975] AC 55 R v Inglis [2010] EWCA Crim 2637 R v Marshall [2001] Unreported R v Martin (1986) 8 Cr App R (s) 419 R v Malcherek [1981] 2 All ER 422 R v MacGranaghan (1987) 9 Cr App R 447 R v Mcshane (1978) 66 Cr App R 97 R v Nedrick (1986) 83 Cr App R 267 R v Nielsen (1990) 47 A Crim R 268 R v Owino [1995] 2 Cr App R 128 R v Page [1953] 2 All ER 1355, [1954] 1 QB 170 R v Pitwood (1902) 19 TLR 37 R v Price and Others [2008] Winchester Crown Court Unreported R v Robey (1976) 1Cr App R 127 R v Sawyer (1815) Russ & Ry 294 R v Smith 1948 The Times 17th June 1948 R v Steane [1947] KB 997 R v Vinagre (1977) 69 Cr App R 104 R v Walden [1959] 1 WLR 1008 R v Webb [2011] EWCA Crim 152 R v Williams and Davies (1992) 2 All ER 183 R v White [1910] 2 KB 124 R v Woollin [1999] AC 82 R (Al Skeini) v Secretary of State for Defence [2005] WLR 1401 R (Al Skeini) v Secretary of State for Defence [2007] QB 140 R (Middleton) v West Somerset Coroner [2004] UKHL 10 R (on the application of Pretty) v Director of Public Prosecutions (2001) 11 BHRC 589 R (on the application of Purdy) v Director of Public Prosecutions (2009) 27 BHRC 126 Rabone v Pennine Care NHS Trust (2012) UKSC 2 Reeves v Commissioners for the Metropolis [2000] 1 AC 360 Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1 Re MB (Medical Treatment)(Court of Appeal) [1997] 2 FLR 426, [1997] 8 Med LR 217 Re T [Adult: Refusal of Medical Treatment] [1992] 4 All ER 649, [1993] Fam 95 Richmond v Richmond (1914) 111 LT 273 Savage v South Essex Partnership NHS Trust (2008) UKHL 74 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 Sirdar v The Army Board, Secretary of State for Defence (CaseC-273/97 Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334 White v Chief Constable of South Yorkshire Police (1998) 3 WLR 1509 United States F W Woolworth Co.
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