Card Set Information

2014-04-16 10:22:04
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  1. 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.
  2. 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).
  3. Definition/Explanation
    • 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).
  4. 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.
  5. 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
  6. 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
  7. 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
  8. 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
  9. Arguments Against
    • 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
  10. Argument for
    • 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
  11. Reform
    • 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