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History/background to the defence
- The defence of necessity has existed (been recognised and referred to for over 100 yrs)- i.e. long existed in the common law.
- However the problem was that the courts were unwilling to allow anyone to use the defence for fear of the effect of doing so; it would open the floodgates if criminals could say I committed the crimes out of necessity.
Necessity in Civil and Criminal Cases:
- Over the years the defence of necessity was seen in the courts but was not used in criminal cases .
- There was some limited use of it in civil courts (medical cases).
- A pressure defence.
- Def has MR and AR but feels no real choice because Def commits the crime “where it is the lesser of 2 evils”.
- Similar to Duress in that Def is saying that they didn’t really choose to commit crime/felt had to do so.
- Different from Duress in that there is no element of dangerous threats from another person (duress by threat) and the def is not committing crime to avoid a dangerous situation (duress by threat).
Re F (a mental patient) (1990)
showed that the defence was available when it was used in this civil cases involving the sterilisation of a girl with mental disability who was unable to consent.
Dudley v Stephens (1894)
- The D's were sailors shipwrecked on a rowing boat who decide to kill cabin boy and eat him so they could survive.
- Picked up few days later; convicted murder
- Case told us necessity not available for MURDER
Southwark London Borough Council V Williams (1971)
- Shows a restrictive approach
- Family were homeless, feared that their children would be taken into care so squatted in a council property.
- The court did not accept this was necessity
- '..if homelessness was admitted to a defence of trespass then no man's house would be safe..' Lord Denning
RE A: (Conjoined twins) (2000) CA (civil
- Hospital Sought a declaration that i would be lawful for it to operate to separate Siamese twins knowing that one of the twin would die - to stop them being prosecuted of murder.
- If they didnt operate both would die within 6 months
- A distinction was made between duress by threat and cirs and cases of real choice (necessity) - unique case on its facts
- CA said necessity is a question of justifying a choice between two evils
- SUGGESTS: Necessity could be available to murder
Elements of Necessity
- 1. The act was needed to avoid inevitable and irreparable evil
- 2. No more was done than was reasonably necessary for the purpose to be achieved
- 3. The evil inflicted was not disproportionate to the evil avoided.
- Shayler added a extra one 4. The evil must be directed towards the person or persons for whom he has responsibility
- Simply give people an excuse for wrongdoing
- It is wrong for one person to choose his life over that of another person
- The prosecution can always make a decision not to prosecute - Buckoke V GLC (1971) - fire engine drive who broke traffic laws to get to burn building should not rely on the defense of necessity
- Duress of cirs now exists which the D has to show threat of life or PI - narrower approach
- The relevance of the D's motive 0 not operating of its own freewill
- Expecting too much of people if we dont allow the defence of necessity
- Cant rely on protection of prosecution
- The Law commission 1977 stated that it was opposed to the defense and it should be abolished
- Some argue the defense of necessity should be available to doctors who assist the terminally ill to die
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