Dudley and Stephens 1884?
Until the 1980’s the defence of necessity was held not to exist, this can be traced as far back as in Dudley and Stephens 1884 whereby both men ate a cabin boy in order to survive a shipwreck, their plea of necessity to a murder charge was rejected and they were both convicted of murder. However, Queen Victoria pardoned them so as to avoid the death penalty.
Southwark London Borough Council V Williams 1970?
The justification was clearly stated in Southwark London Borough Council V Williams 1970, in this case the defendants through no fault of their own were in dire need of housing accommodation and entered empty houses owned by the local council. The council went to court to have them evicted. The court said that despite the families circumstances the defence of necessity didnt apply and they were evicted. As Lord Denning said ‘if homelessness were once admitted as a defence to trespass, no-ones house would be safe. Necessity would open a door which no man could shut.’
R V Richards 1986?
Some legal academics asserted that the defence does not exist in law but in R V Richards 1986, Lord Goff said there was ‘no doubt that a defence of necessity existed even though its scope was not well established’.
F V Berkshire Health Authority 1990?
The defence was put in place in F V Berkshire Health Authority 1990 where the court said doctors were justified in carrying out sterilisation operation on a woman who was incapable of giving consent because of her learning disabilities. There was a high risk she would become pregnant if she was not sterilised and it was agreed that pregnancy would have a very disturbing impact on her, so there was no need to use the defence.
What else provides defences that are in practice defences of necessity?
Acts provide defences, for example The Road Traffic Regulation Act 1984 where the emergency services are exempted from observing the speed limit in certain circumstances or the Criminal Damage Act 1971 which states it is permissible to destroy another’s property for the immediate need to protect property. However, during the 1980’s duress of circumstances began to emerge and amongst many it was considered that necessity and duress of circumstance were interchangeable and that duress of circumstance was simply necessity in disguise.
What are the two defences of necessity?
- necessity
- duress of circumstance
Re: A 2000?
This case involved an operation to separate conjoined twins. An operation would save one twin but kill the other and no operation would result in the death of both. The parents would not consent to the operation and a declaration was sought to confirm the lawfulness of the operation. Brooke LJ said that the defence of necessity would be available to the doctors were they to be charged with murder of the weaker twin. However, they were not convicted and the defence was not used. It is not clear whether the defence extends beyond medical dilemmas and the full implications of the case have yet to be worked out.
R V Shayler 2002?
The defence of necessity was denied here, in this case the defendant was a former member of security services. He was charged with disclosing confidential documents in breach of the Official Secrets Act 1989, he claimed the defence of necessity and his conviction was upheld by both courts. This case created a three part test:
1. The act must be done to prevent some greater evil.
2. The evil must be directed towards the defendant or a person who he was responsible.
3. The act must be reasonable and proportionate to the evil avoided.
The court said that Shayler may well have had a defence if he could have identified who was in danger and he was able to claim responsibility towards them. This case has attempted to clarify the law but has in fact not resolved the confusion created by Re: A 2000. In Re: A there was no requirement for the evil to be directed at the defendant, in this case the doctors. Also, in necessity the defence has been allowed for murder.
R V Quayle and Others 2005?
The court dismissed claims that necessity should be available to those charged with drug offences because they used drugs for relieving painful symptoms of conditions like MS or physical injuries. The court said that a restrictive approach was needed and it was not allowed to be pleaded as it contradicts with clear legislative policy i.e. the use of controlled drugs.
R V Altham 2006?
A similar approach was taken here, where the defendant used cannabis for pain relief and he was charged with possessing drugs. The court said he could not raise a defence of necessity by relying on Article 3 of the ECHR, the prohibition of inhuman or degrading treatment or punishment. The Court of Appeal upheld his conviction relying heavily on R V Quayle and Others.
Differences between duress of circumstance and necessity?
- Duress whether of threats or circumstance cannot be a defence to murder or attempted murder, but according the Re: A 2000 necessity may be a defence to murder.
- Duress exists only where the defendant reasonably believes that they are in danger of death or serious injury this is not necessarily the case in necessity as shown by Re: A 200.
- With duress of circumstance the threat must be ‘imminent’ i.e. be operative on the mind of the defendant and overbearing his will. With necessity, the principle is one of ‘necessity not emergency’ as shown in Re: A 2000. A rational choice is made to advert a greater evil that will necessarily happen even if some time before it happens.
- Cases of duress of circumstance have allowed certain aspects of the vulnerability of the defendant to be taken into account, shown by the Graham Test. This test is used to determine whether a person should be excused because his will was overborne. With necessity, the focus in on the balancing of evils and not on the defendant’s condition.
Reasons there should be a general defence of necessity?
- relevance of the motive, the law accepts that people should incur criminal liability for voluntary actions but it is argued that by ignoring the motive behind the act the law’s view of free will is too narrow. The academic Alan Norrie suggests that necessity is raised in cases where the defendant’s motive for acting is due to social or natural circumstances beyond their control such as in Southwark London Borough Council V Williams 1971 and that it is difficult to argue that the defendant’s as in Williams acted of their own free will.
- Impossible standards, the lack of defence of necessity suggests that the law expects people to behave heroically. This is difficult to reconcile with the lack of a general duty of care, where for example there would not be any criminal liability on an adult who fails to help a child drowning.
- Discretion on prosecution is insufficient, leaving discretion to the prosecuting authorities is an undesirably vague and subjective way of dealing with the matter. However, this leads to unfairness and inconsistency in the administration of justice.
Reasons against having a general defence of necessity?
- it gives an excuse for wrongdoing, it would simply be an excuse for a crime and that there would be no end to its use. In Southwark London Borough Council V Williams 1971, Denning justified denying the defence because necessity would ‘open a door no man could close’.
- Police arguments given in R V Dudley and Stephens 1884 as a reason for not allowing defence to a murder charge.
- Prosecution discretion, it has been suggested that the prosecution whether to prosecute or not.
Reform of necessity?
In 1977 the Law Commission stated its opposition to a defence of necessity. This was severely criticised and the Draft Criminal Law Bill 1993 retains any defence of necessity that currently exists at common law.
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Strict Liability30
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Non-Fatal Offences64
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Police Powers81
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Actus Reus16
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Mens Rea24
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Murder27
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Causation30
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Omissions38
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Defences: Automatism22
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Defences: Necessity14
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Defences: Consent33
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Sentencing31
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Defences: Self-Defence27
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Defences: Duress44
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Defences: Insanity24
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Defences: Intoxication33
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Voluntary Manslaughter50
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Involuntary Manslaughter43
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Criminal Procedures55
