The purpose of this essay is to explain and critically examine the scope of the defence of necessity and suggest its reform.
Criminal Law
The purpose of this essay is to explain and critically examine the scope of the defence of necessity and suggest its reform. At the outset, it should be noted that “necessity relates to a situation where a person commits an offence to avoid a greater evil to himself or another which would ensue from the circumstances in which he or that other are placed.”[1] Although, its operation is limited, “English law does, in extreme circumstances, recognise a defence of necessity”[2].
Defence of necessity is closely related to the duress of circumstances so “the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts”[3] In R v Martin, Simon Brown J explained that “most commonly [necessity] arises as duress, i.e. pressure put on the accused's will by another's wrongful threats or violence, but it can also arise from other objective dangers threatening the accused or others amounting to duress of circumstances.”[4] Therefore, it might seem that “whether 'duress of circumstances' is called 'duress' or 'necessity' does not matter.”[5] Accordingly, very often, the terms ‘necessity’ and ‘duress’ are used interchangeably[6].
On the other hand, there are some major differences. Firstly, necessity is a justificatory defence whereas duress is of an excusatory nature.[7] Secondly, duress of circumstances is recognised only where there is a threat of death or serious injury[8] whereas necessity operates to justify an action conducted in the individual’s best interest[9] or where the defendant faces the “naturally occurring disasters, accidents caused by human actors or criminal threats”[10]. Thirdly, where considering necessity, “focus is on the balancing of evils, not on the particular defendant’s condition”[11]. Finally, in terms of duress, the threat must be imminent[12], whereas “with necessity, the principle is one of ‘necessity, not emergency’”[13].
It is a general view that the Courts are not willing to recognise necessity as a defence[14]. In the case of Southwark London Borough v Williams it was indicated that necessity can very easily become a ‘mask for anarchy’ because “if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass.”[15] Accordingly, the Courts rejected the defence of necessity where the intelligence officer revealed secret information to the public[16] or protesters tried to commit criminal damage in the RAF airbase to hinder the conduct of the Iraq War[17]. This might indicate that political reasons cannot constitute grounds for the defence. Moreover, defence of necessity was rejected in the cases where chronically ill patients alleviated their pain by smoking medical cannabis[18] contrary to the Misuse of Drugs Act 1971[19]. Therefore, it should be noted that where considering the defence of necessity in terms of particular piece of legislation, it “might be available where the general scheme and policy of the legislation [is] not in question”[20], but the defence is likely to be rejected where it directly conflicts with the very purpose of the statute.[21] It has been suggested though, that regarding a concept of positive Human Rights, in extreme circumstances necessity should constitute a successful defence.[22] The criticism seems reasonable since some patients do not respond to legally approved painkillers and, consequently, they have no choice but to resort to the illegal drugs. On the other hand, the problem should be solved by Parliament, not Courts.[23]
Statutory defence which could be regarded as necessity[24] might be raised by policemen, fire-fighters and ambulances exceeding the speed limit under the Road Traffic Regulations Act 1984[25] and when ignoring the red traffic light in some limited situation under the Traffic Signals Regulations and General Directions.[26] What is more, under the Criminal Damage Act 1971 it is permissible to destroy another person’s property in order to protect other property that is “in immediate need of protection”.[27] Furthermore, some authors argue that the defence of necessity is recognised by implication[28] and the defendant who chooses lesser evil is either acquitted or no prosecution is brought at all.[29] The approach could be illustrated in the case of R v Bourne [30] where a doctor who had caused miscarriage to a 14-year-old rape victim was charged with unlawfully procuring a miscarriage[31] and subsequently acquitted since his actions were considered in bona fide. Accordingly, the Infant Life (Preservation) Act 1929 provides that a person is not guilty of child destruction where he or she acts in a good faith and in mother’s best interest.[32] Similarly, the defence of necessity is provided in relation to abortion by the Abortion Act 1967.[33]
The operation of the defence of necessity might be observed in a series of medical cases. In Gillick v West Norfolk and Wisbech Area Authority, [34] a doctor who had advised a girl under 16 years old on contraceptive methods was acquitted of aiding and abetting the commission of unlawful sexual intercourse. It was stressed that doctor’s bona fide negated his guilty mind. In the later case of F v West Berkshire Authority [35] it was decided that a mentally disabled woman could be sterilized without her consent but in her own interest. Similarly, informal detention of mentally disabled person could be claimed to be justified by necessity.[36] However, the possibility of treatment under necessity is limited only to patients who are not capable of giving their consent.[37] The Court must ask "what course of action is best calculated to promote … true welfare and interests?"[38] This approach illustrates the operation of necessity “not used to excuse wrongful conduct but to justify conduct as the right thing to do.”[39] The culmination of medical cases could be found in Re A (children) (conjoined twins: surgical operation) [40] which will be dealt with later.
Despite some academic criticism,[41] it would not be possible to avoid a conviction of murder for euthanising a person by virtue of the defence of necessity. This possibility was expressly rejected in the case of R (on the application of Nicklinson) v Ministry of Justice where a terminally-ill patient sought a judicial approval of conducting a voluntary euthanasia.[42] The Court found itself incompetent to authorise such step without any changes in the legislation. On the other hand, the defence has been impliedly recognised by the Courts where a doctor accelerates a patient’s death by the pain-relieve treatment under the so called ‘double effect doctrine’.[43] What is more, as mentioned before, necessity is also available for a medical practitioner who performs abortion in certain circumstances.[44]
It is an established principle of English law that necessity is a defence neither to murder,[45] nor to attempted murder[46] (similarly, the defence of duress cannot be raised[47] ). In the case of R v Dudley and Stephens [48] two men were convicted of murder after killing their companion. They were trapped on an open boat and drifted for 20 days without food being on the verge of starvation, and decided to kill and eat the weakest one. Defendants were sentenced to death subsequently commuted to six months’ imprisonment. The Court rejected a possibility of killing a human being in order to save lives of others on the grounds that no one could determine “by what measure is the comparative value of lives to be measured”. It was stressed that every life was equally sacred. On the one hand, some academic writers approve the approach stating that one prefers to be trapped on a boat with people who flinch from taking a life of an innocent rather than with a group of lawyers who accept necessity as a defence to murder.[49] On the other hand, others argue that the law already recognises that one’s life could be sacrificed for the sake of another.[50] Some authors also indicate that the harshness of the decision made in Dudley and Stephens might be counterbalanced by various factors such as the Attorney-General's discretion not to bring prosecutions even where there is strong prima facie evidence that the offence has been committed, flexibility in sentencing or rarely used Royal Prerogative of Mercy.[51]
A slightly different approach was adopted in the USA. In the case of United States v Holmes [52] a member of the crew who had thrown a few passengers overboard to prevent the boat from sinking was convicted of manslaughter.[53]
It is suggested that where there is no problem of selection who is actually to be killed, the defence of necessity might apply.[54] Accordingly, if a mountaineer cuts a rope before he is dragged into the precipice by his falling companion, he commits no offence.[55] Moreover, “it would be lawful to shoot down the plane, killing all the innocent passengers and crew if this were the only way to prevent a much greater impending disaster.”[56] It might be argued that “no matter what happens on the ground, the lives of the passengers are already lost, because they will die in any event.”[57] Although, so far there is no case law which could corroborate this approach, its theoretical possibility has been confirmed by the Select Committee on Defence.[58]
This reasoning was applied in the case of Conjoined Twins. [59] Doctors carried out the operation of separation of the twins in order to save life of one of them. The procedure resulted in death of the weaker sister but hadn’t it been carried out, both twins would have died. It seems the case was not different from a hypothetical situation where a mountaineer cuts the rope. The choice was not easy, but it was simple – either one life will be lost or two. In terms of the law, it was virtually certain that the operation would lead to Mary’s death which satisfies necessary mens rea for murder.[60] Although Marry was ‘designed to die’, it was agreed that the procedure was in Jodie’s best interest and failure to conduct it might have amounted to a breach of a duty to act.[61] The Court applied 3 requirements for necessity as set out by Sir James Stephen:
- the act is needed to avoid inevitable and irreparable evil;
- no more should be done than is reasonably necessary for the purposes to be achieved and,
- the evil inflicted must not be disproportionate to the evil avoided.
As a result, it was ruled that in such a scenario necessity might operate as a defence to murder. This approach was confirmed in the Australian case of Queensland v Nolan where circumstances were very similar.[62] On the other hand, the defence of necessity was rejected in the Canadian case of R v Latimer where a father of a chronically-ill daughter actively and intentionally ended her, filled with suffering, life.[63] It seems that since there was no other life to save, there was no other choice but to convict him of second degree murder.
[...]
[1] Allen M. and Cooper S. Elliott and Wood’s Cases and Materials on Criminal Law (Thomas Reuters, London 2010) at 266
[2] R v Martin [1989] 88 Cr App R 343
[3] R v Shayler [2001] All ER (D) 99
[4] op. cit. n 2
[5] R v Conway [1988] 3 All ER 1025 cited in R v Shayler [2001] All ER (D) 99
[6] E.g. R v Conway [1988] 3 All ER 1025
[7] Clarkson C.M.V. ‘Necessary action: a new defence’ (2004) Crim. L.R. 81-95
[8] R v Graham [1982] 1 All ER 801 (CA)
[9] E.g. F v West Berkshire Authority [1989] 2 All ER 545, [1990] 2 AC 1 HL
[10] Smith and Hogan’s Criminal Law, 13th ed. David Ormerod, Oxford, p 368
[11] Clarkson C., Keating H. and Cunningham S. Clarkson and Keating Criminal Law Texts and Materials (Sweet & Maxwell, London 2007) at 361
[12] R v Hasan [2005] 2 AC 467
[13] A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, [2000] 4 All ER 961 (CA)
cited Clarkson C., Keating H. and Cunningham S. Clarkson and Keating Criminal Law Texts and Materials (Sweet & Maxwell, London 2007) at 361
[14] E.g. R v Kitson [1955] 39 Cr App66 (CA)
[15] Southwark London Borough v Williams [1971] CH 734
[16] op. cit. n 2
[17] R v Jones & Milling [2004] EWCA Crim 1981, [2005] Crim LR 122, [2006] UKHL 16
[18] R v Quayle; AG’s Reference (No. 2 of 2004), Re Ditchfield [2005] EWCA Crim 1415, [2006] Crim LR 148
[19] Misuse of Drugs Act 1971. s6(1)
[20] Ormerod D. Smith and Hogan’s Criminal Law (Oxford University Press, Oxford 2011) at 368
[21] Ibid.
[22] Ashworth A.J. ‘ Case Comment, Defence of necessity: possession of Class B drug - drug used as pain relief strategy’ (2006) Crim. L.R. 633-635
[23] Ibid.
[24] Clarkson C., Keating H. and Cunningham S. Clarkson and Keating Criminal Law Texts and Materials (Sweet & Maxwell, London 2007) at 364
[25] Road Traffic Regulations Act 1984, s87
[26] Traffic Signals Regulations and General Directions (SI 1981 No. 859), reg34(1)(b)
[27] Criminal Damage Act 1971, s5(2)(b)
[28] Peter Glazebrook cited inHerring J. Criminal Law Texts, Cases and Materials (Oxford University Press, Oxford 2010) at 654-655
[29] Herald of Free Enterprise cited in Herring J. Criminal Law Texts, Cases and Materials (Oxford University Press, Oxford 2010) at 654-655
[30] R v Bourne [1938] 3 All ER 615
[31] Offences Against the Person Act 1861, s58
[32] Infant Life (Preservation) Act 1929, s1
[33] Abortion Act 1967, s1
[34] Gillick v West Norfolk and Wisbech Area Authority [1985] 1 All ER 553 (HL)
[35] F v West Berkshire Authority [1989] 2 All ER 545, [1990] 2 AC 1 (HL)
[36] R v Bournewood Community and Mental Health NHS Trust [1998] 3 All ER 289
[37] St George’s Healthcare NHS Trust v S [1999] Fam 26 (CA)
[38] op. cit. n 35
[39] Clarkson C., Keating H. and Cunningham S. Clarkson and Keating Criminal Law Texts and Materials (Sweet & Maxwell, London 2007) at 362
[40] A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, [2000] 4 All ER 961 (CA)
[41] Ost S. ‘Euthanasia and the defence of necessity: advocating a more appropriate legal response’ (2005) Crim. L.R. 355-370
[42] R (on the application of Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin); [2012] 3 F.C.R. 233 (DC)
[43] R v Adams [1957] Crim LR 365
[44] opt. cit. n 33
[45] R v Dudley and Stephens [1884] 14 QBD 273
[46] R v Gotts [1992] 2 AC 412
[47] R v Howe [1987] 1 AC 417 (HL)
[48] op. cit. n 45
[49] Kenny, Freewill and Responsibility (1978, Routledge&Kegan Paul), pp. 36-38 cited in Allen M. and Cooper S. Elliott and Wood’s Cases and Materials on Criminal Law (Thomas Reuters, London 2010) at 274
[50] Bohlander M. ‘Of shipwrecked sailors, unborn children, conjoined twins and hijacked airplanes - taking human life and the defence of necessity’ (2006) J. Crim. L. 70(2), 147-161
[51] Wilson J. ‘Necessity as a Defence to Murder’ (2011) Criminal Law & Justice Weekly 175 JPN 270
[52] United States v Holmes 26 Fed Cas 360 (1841)
[53] Similarly, in the recent case, the jury convicted of manslaughter a man who caused death by removing a seven-year-old girl’s life jacket in order to save himself while both were struggling in the water.
Troy Carlisle v State of Mississippi 822 So.2d 1022; [2002] Miss. App.
[54] Ormerod D. Smith and Hogan’s Criminal Law (Oxford University Press, Oxford 2011) at 370
[55] Ibid.
[56] Smith and Hogan, Criminal Law (10th ed., 2002) (Butterworths, London), pp.273-274 cited in Clarkson C.M.V. ‘Necessary action: a new defence’ (2004) Crim. L.R. 81-95
[57] opt cit. n 50
[58] Paragraph 8 of the 6th Report, Defence and Security in the UK 2001-2002, HC 518-I cited in Ormerod D. Smith and Hogan’s Criminal Law (Oxford University Press, Oxford 2011) at 370
[59] op. cit. n 40
[60] R v Woolin [1999] 1 AC 82
[61] Allen M. and Cooper S. Elliott and Wood’s Cases and Materials on Criminal Law (Thomas Reuters, London 2010) at 276
[62] State of Queensland v Nolan [2001] QSC 174
[63] R v Latimer, A-G of Canada and Others intervening [2001] 3 LRC 593
- Quote paper
- Kacper Zajac (Author), 2013, The Scope and Potential Reform of the Defence of Necessity in English Law, Munich, GRIN Verlag, https://www.grin.com/document/353646
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