What do eating cabin-boys and instructing experts have in common? Well, it seems that the law frowns on both, and queries whether either was necessary.
The Court of Appeal have given judgment in the much trumpeted issue of what the word ‘necessary’ means in the context of the new requirement in the Family Procedure Rules that before an expert can be instructed in a family case, the Court must determine that their instruction is necessary.
Re H-L (A Child) 2013
In the current context and climate, the Court of Appeal were clearly keen to tackle this issue and give a steer on it as soon as possible. This is how the President opened
1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5,  1 FLR 1250.
2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para ):
“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”
We now have to decide what is meant by ‘necessary.’
Game on, as they say. So, what does necessary mean?
The short answer is that ‘necessary’ means necessary.
If you are thinking, crikey, was there something good on television or for lunch and the Court of Appeal just wanted to get this whole thing done, don’t worry, we develop the short answer a bit. (not much, I am trying not to give this a huge build-up)
If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, paras , . This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.
So a spectrum somewhere between indispensable and useful/desirable, but much more towards the indispensable side of the scale.
The Court allowed the geneticist and upheld the refusal for the other two experts (a paediatrician and a haemologist)
The President also used the case as a reminder that the appellant Court will strive to uphold reasonable and robust case management decisions (no doubt being mindful that a lot of the current problems that are striving to be unpicked are due in part to the Court of Appeal knocking back any Judge who actually tried to follow the principles of the current Public Law Outline)
As this is so short, permit me a digression.
That’s rather better than I envisaged, when I mockingly suggested that we would be incorporating the Dudley and Stephens opinion of necessity into care proceedings. For those of you who didn’t study law, or did so a long time ago, Dudley and Stephens was the case of shipwrecked sailors who being both marooned and peckish, killed and ate their cabin boy. In mixed blessings for them, they were then rescued (hooray!) but then tried for murder.
The sailors pleaded that they had to kill the boy and eat him or they would all have perished and therefore it was necessary to eat him. This was an attempt to introduce a doctrine of necessity into the criminal law as a defence. The jury could not decide what to do and the case was referred up to the Court of Appeal for guidance.
This doctrine of necessity defence was rejected by the Court, in a lovely passage by Lord Coleridge
From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother’s notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that “the boy being in a much weaker condition was likely to have died before them.” They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him
It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder
This is a lovely judgment, bringing in all sorts of ideas and references, and interesting to me as a law geek particularly because the Court recognise that the case is a real-life version of a hypothetical example given in legal textbooks of the time of two sailors on a plank and would it be lawful for one to eat the other to prevent them both starving. The authors of the legal textbooks had suggested that it would be, but the Court disagreed.
The sailors were found guilty and hanged. [The whole set up reminds me of those Fortunately-Unfortunately-Fortunately-Unfortunately games/stories we used to tell at school http://en.wikipedia.org/wiki/Fortunately,_Unfortunately ]
[I recall, as I once had to research this, that there is no offence of cannibalism per se in English law – the crime would be either bringing about the death, or if the person had died naturally, a pretty minor Common Law offence of conspiring to prevent a decent and legal burial]
So the lessons for today are – if you are applying for an expert make sure you lay on with a trowel how close to indispensable this instruction is and if you are going to eat a cabin boy, wait till he dies of natural causes. [Which further digresses me to Vic Reeves' sterling words of advice "If you DO get trapped in your flat...try NOT to get trapped in your flat"]