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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