necessity

Question 1

necessity basic definition

Answer 1

accused compelled to commit a crime because of a threat from the circumstances

Question 2

first recognised case

Answer 2

Moss v Howdle 1997 JC 123
Facts: Accused had been driving with a passenger who suddenly screamed. The accused assumed that they were in pain, so drove quickly to the nearest service station to make sure they were okay. As a result he was convicted of a speeding offence.
Legal issue: the accused wasn’t ill, but the accused reasonably believed that they were.
Held: Yep, all good, reasonable belief.

Question 3

requirements for necessity

Answer 3

Lord Advocate’s Reference (No 1 of 2001)
- imminent threat of death or serious injury to the accused or third party based on a reasonable belief as to the circumstances
- threat must have constrained the accused to break the law
- threat must have ‘dominated the mind’ of the accused
- objective test ‘sober person of reasonable firmness, sharing the characteristics of the accused’
- act must have reasonable prospect of removing the danger

Question 4

leading case

Answer 4

Lord Advocate’s Reference (No 1 of 2001)
Facts: A group of three people who were said to have committed malicious mischief in response to their belief that the deployment of weapons at the Royal Navy Base in Scotland was a breach of international law.
Significance: This case set out the requirements for using this defence.

Question 5

imminent threat

Answer 5

Lord Advocate’s Reference (No 1 of 2001)

Question 6

constrained the accused to break the law

Answer 6

Moss v Howdle 1997 JC 123

Question 7

dominated the mind

Answer 7

Dawson v Dickson 1999 JC 315
Facts: This case involved an off-duty firefighter who showed up to the scene of an accident. He had been drinking, and had tried to move a fire truck out of the way of an ambulance to allow it to gain access to a person who had been injured. In doing so, he hit into a police car.
Legal issue: The accused tried to use the defence of necessity.
Held: This defence was rejected. The court felt that the defence is only available where there is a conscious dilemma faced by the accused who has to decide between breaking the law and avoiding the harm threatened.
The accused hadn’t weighed up his options, as it hadn’t occurred to him that he wasn’t fit to drive.

Question 8

objective test

Answer 8

Lord Advocate’s Reference (No 1 of 2001)

Question 9

reasonable prospect of removing the danger

Answer 9

Lord Advocate’s Reference (No 1 of 2001)
Facts: A group of three people who were said to have committed malicious mischief in response to their belief that the deployment of weapons at the Royal Navy Base in Scotland was a breach of international law.
Legal issue: Did this act have a reasonable prospect of removing the danger?
Held: No, there was nothing to suggest that destroying fences would have any impact on the perceived risks of the nuclear weapons.
Significance: The act must be closely linked with the threat that they are trying to avert, and must have reasonable prospect of removing the danger.

Question 10

coercion and necessity as defences to murder

Answer 10

R v Dudley & Stephens (1884) 14 QBD 273
Facts: 2 sailors and a cabin boy who had been cast adrift after their ship sank. They survived for almost 3 weeks on virtually no food. At this point, the 2 sailors killed the cabin boy who was very ill, and ate him.
Held: There is no absolute necessity to preserve one’s own life. Convicted of murder, however a shorter sentence on the grounds of mercy.
Significance: You can’t use this defence for murder.