Necessity as a Justification in Re A (Children)

In criminal law theory, it is common to distinguish between the defence of necessity as a justification and the defence of necessity as an excuse. However, it is sometimes said that English law does not clearly distinguish between justification and excuse. In Re A (Children) the Court of Appeal permitted the separation of conjoined twins although the separation would lead to the immediate death of one of the twins. In his judgment, Brooke LJ invoked the defence of necessity and appears to be ready to base his decision on necessity as an excuse. It is, however, submitted in this article that Brooke LJʹs decision should be interpreted as having been based on necessity as a justification. Consequently, it cannot be said any longer that English law does not distinguish between justification and excuse.