necessity

Discuss the operation of defence of necessity in England and Wales. The necessity defence is a complete defence1 which protects an accused who was compelled to break the law in order to avoid an even worse consequence2. For policy reasons (especially the fear of opening up the floodgates), the application of the defence is extremely narrow and it is rarely ever argued successfully3. The difference is that necessity is a threat from something occurring imminently naturally, whereas duress is where you are ordered to do something by another, or else something bad may happen to you, or someone you know.4 With duress, you act against your own will, but for a greater power making you do something you do not want to do. However, the courts have been reluctant to recognise the defence of necessity. In Dudley and Stephens 18845, A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. The Divisional Court held that that act was not done under a threat and therefore the defendants were found guilty and charged with murder. This shows that the court was not prepared to allow the defence of necessity. This restrictive approach to a defence of necessity may also be seen in Southwark v Williams 1971 where Lord Denning was concerned that people would use the defence too much, e.g. if they were hungry it would be necessary for them to steal food. In Southwark London Borough Council v Williams (1971)6, a family that was evicted from an empty council house could not plead the defence of necessity in that the members would be homeless if they were not allowed to squat. In relation to road traffic offences, the court in Buckoke v GLC7 stated that if the driver goes through the red traffic lights in order to save the life of a human being, he may have the defence of necessity. In relation to Offences against The Persons, necessity may be a defence but it is limited8. For example, in Re F9, F was a 36 year old woman. She had a serious mental disability caused by an infection when she was a baby. She had been a voluntary in patient in a mental hospital since the age of 14. She had the verbal capacity of a child of two and the mental capacity of a child of 4. She developed a sexual relationship with a fellow patient. Her mother and medical staff at the hospital were concerned that she would not cope with pregnancy and child birth and would not be able to raise a child herself. Other methods of contraceptives were not practical for her. They sought a declaration that it would be lawful for her to be sterilised. F was incapable of giving valid consent since she did not appreciate the implications of the operation. Hence, it is submitted that it is lawful to carry out sterilization operation on a mental patient due to the risk that she would become pregnant. In R v Bourne 193910, A 14 year old girl was raped by five soldiers and became pregnant as a result. An eminent gynaecologist performed an abortion on her and was charged under section 58 of Offences Against The Person Act 195811. He was acquitted. The jury found that the operation was performed in good faith for the purpose only of preserving the life of the girl. The surgeon had not got to wait until the patient was in peril of immediate death, if he was of opinion that the pregnancy would make the patient a physical and mental wreck. Although the judge in this case did not use the word 'necessity, Lord Denning in London Borough of Southwark v. Williams12 stated it was. Although the defence of necessity is to be allowed in such instance, it is no longer a good law as it is now governed under the Abortion Act 1967.13 Re A14 is an interesting case because it conflicts with the previous law. In this case, the doctor wanted to separate a conjoined twins but this would result the death of one twin. If the operation was not carried out both twins would die but with it one could be saved. The doctors were trying to use the defence of necessity but in Dudley and Stephens where shipwrecked sailors killed and ate a cabin boy when they had no food, the court held that necessity could not be a defence to murder. In Re A, the court of Appeal authorized the separation and held that there were circumstances where necessity could be used as a defence to murder. It is a valid defence where the killing was in order to avoid a worse evil. The court said that the defence could only be used if some strict requirements were met, and these were identified by Brooke LJ in lines 19 to 22 of source 11. Firstly, the act is needed to avoid inevitable and irreparable evil15; second no more should be done than is reasonably necessary for the purpose to be achieved16; third the evil inflicted must not be disproportionate to the evil avoided17.’ He thought that all three conditions were satisfied in this case.18 Whilst the defence of necessity is often used to protect medical professionals 19perceived to be acting in the best interest of their patients, the defence of necessity has been denied in self-medication cases which could be seen in R v Quayle20 as well as R v Altham. In Quayle, five appeals were jointly heard with one Attorney General reference. Each case was concerned with the applicability of the defence of necessity in relation to offences involving, possession, cultivation, production and importation of cannabis. In all the appeals the appellants argued that the cannabis was for medical purposes for the relief of pain for various medical ailments including HIV, Multiple sclerosis and severe back pain. It was held that neither the defence of necessity nor duress of circumstances was applicable in such circumstances. Similarily, in R v Altham, the appellant was involved in a serious road traffic accident 15 years ago in which he dislocated both hips and sustained a left sided fracture. Surgery on two occasions prove unsuccessful. In 1997 his left hip was removed entirely and he has been in chronic pain in his lower limbs ever since. In 2006 the appellant pleaded guilty for the misuse of Drug Act 1971 for being in possession of Cannabis. He claim necessity as in R v Quayle. However, the judge had ruled that the defence of necessity could not be raised following the decision in R v Quayle & ors. He appealed against the judge’s ruling arguing that denial of the defence amounted to a breach of Art 3 of the European Convention of Human Rights in that his medical symptoms amounted to inhuman or degrading treatment In R v Shaylers21, Mr Shayler, a former member of the Security Service, was charged with three offences under the Official Secrets Act 1989. Under sections 1 (1)22, 4 (1)23, and 4 (3)24 of the Act, he was accused of disclosing information and/or documents relating to his time in the service without lawful authority. Given this definition, two defences that are often categorised as being instances of an overarching defence of ‘necessity’ actually having nothing to do with necessity. Firstly, the defence of duress which is available to a defendant who acted under the pressure created by the need to avoid death or serious injury to himself or to someone for whom he is responsible cannot be analysed as a necessity defence25 because a defendant seeking to raise a defence of duress is not seeking to justify his conduct. Instead he is seeking to excuse his conduct by arguing, in essence, that ‘I know what I did was wrong, but I acted as I did under pressure that would have led a normal person to act in the same way as I did. So it’s unfair to find me guilty of committing an offence here because had you been in the same position as me, you would have done the same as me. So it’s just an arbitrary accident of fate that had led me rather than you to end up being charged with this offence, and we shouldn’t allow arbitrary accidents of fate to determine people’s criminal guilt. The defence of self-defence is often analysed as being a form of necessity defence because26: (1) a defendant who seeks to rely on the defence of self-defence is seeking to show that his conduct was justified, just as he would be doing if he were seeking to rely on a defence of necessity27; and (2) a defendant who seeks to rely on the defence of self-defence will not be allowed to rely on the defence unless he used reasonable force to defend himself given the facts as he believed them to be, just as a defendant who was seeking to rely on a necessity defence would not be allowed to unless he could show that his actions were reasonable28, all things considered. However, the better analysis seems to be that in a self-defence case, the defendant is arguing that his conduct was justified not because he did more good than harm in using force against his attacker, but because his attacker had no right that the defendant not use force against him. For example, suppose that Anna is being raped by David when Anna manages to reach for a knife and stabs David to death. Most people agree that Anna is entitled to be acquitted of murder here: she will be able to take advantage of a defence of self-defence. But that is not because she did more good than harm in stabbing David to death. Whether or not that was the case is irrelevant. Anna’s conduct here was justified because David had no right that Anna not stab him to death, given what he was doing to Anna. By raping Anna, David forfeited the right he would have normally had against her that she not subject him to lethal force. It must be noted that the above discussion does not work to explain cases like R v Gladstone Williams (1984)29 where V was not actually attacking D, but D used force against V because she honestly believed V was a threat to her; in such a case, it is hard to say that V had no right that D not use force against him. Gladstone Williams must be explained on some other basis, such as that D’s conduct can be excused. But a problem with this is that in an excuse case, the defendant has to show that his conduct was reasonable, so as to allow the defendant to argue that ‘You would have done the same as me had you been in my position’ and the effect of Gladstone Williams is to acquit a defendant who has acted on the unreasonable belief that he or she is being attacked.) There are some statutory defences that, it could be argued, look like forms of necessity defences. Under s 5(2) of the Criminal Damage Act 197130, a defendant who is charged with causing criminal damage to another’s property will have a defence if he acted as he did in order to protect other property from being damaged, and he acted reasonably in that belief. The classic example where this defence would apply where a fire is raging down a row of houses; the fire services will be authorised to pull down a house in the middle of the row so as to create a fire break and stop the fire spreading any further. By pulling down the house in the middle of the row, the fire fighters have done more good than harm and are entitled to justify their conduct on that basis. Under s 31 of the Immigration and Asylum Act 199931, a defendant who has been charged with committing various offences in order to enter the UK will have a defence if he came to the UK directly from a country ‘where his life or freedom was threatened’ and promptly presented himself to the authorities and made a claim for asylum. A defendant who prevented himself being killed or imprisoned by entering the UK under a false passport, or by smuggling himself across the UK’s borders, will have done more good than harm and is entitled to justify his conduct on that basis. Section 3(1) of the Criminal Law Act 196732 says that ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’ Provisions of the Police and Criminal Evidence Act 1984 confer numerous powers on the police to do things that would otherwise be criminal offences, such as stopping and searching someone (s 1)33, seizing property (s 19)34, arresting someone (s 24)35 and detaining someone in custody. Such provisions can most easily be explained on the basis that the sort of conduct covered by these provisions is in the public interest and is therefore justified. In conclusion, it can be submitted that the defence of necessity is sometimes available for the charge of murder. The defence should thus not be ruled out completely and should be distinguishing from cases to cases. The defence of necessity exists because of the law 's recognition that there are circumstances when the law has to be broken in order to avoid even more terrible consequences.The test for necessity requires that an act was necessary to avoid inevitable evil, no more was done than was necessary, and the evil inflicted was not disproportionate to the evil avoided. The defence of necessity is similar but distinct from the defence of duress, by which the accused is induced to break the law under threats of violence. It is a complete defence. The courts have treated defences like necessity and duress with great caution because of policy reasons such as the suspicion of self-help remedies and the fear of opening the floodgates. Necessity is very rarely successfully raised. Bibliography
Books
Smith and Hogan Criminal Law Cases and Materials,
Criminal Law Text, Cases and Material, Oxford 12th Edition 2013
Jacqueline Martin, Tony Storey, Unlocking Criminal Law (4th edition Routledge 2013)
Clarkson and Keating Criminal Law,Sweet and Maxwell 7thEdition 2010-C.M.V Clarkson, H.M Keating and S.R Cunningham

Eletronic Sources

http://www.e-lawresources.co.uk/Defence-of-Necessity.php

http://nationalparalegal.edu/public_documents/courseware_asp_files/criminalLaw/defenses/NecessityandDuress.asp

http://mcbridesguides.com/2012/09/22/the-defence-of-necessity/

Table of Statutes and Cases

Statutes

section 58 of Offences Against The Person Act 1958

Abortion Act 1967

sections 1 (1) of Official Secrets Act 1989

sections 4 (1) of Official Secrets Act 1989

Sections 4 (3) of Official Secrets Act 1989

s 5(2) of the Criminal Damage Act 1971

s 31 of the Immigration and Asylum Act 1999

Section 3(1) of the Criminal Law Act 1967

S.1 of Police and Criminal Evidence Act 1984

S.19 Police and Criminal Evidence Act 1984

S.24 of Police and Criminal Evidence Act 1984

Cases

R v dudley and stephens (1884) 14 qbd 273

Southwark London Borough Council v Williams (1971) 2 AER 175

Buckoke v GLC [1975] Ch 655

Re F (Mental patient sterilisation) [1990] 2 AC 1

R v Bourne [1938] 3 All ER 615
Re A (conjoined twins) [2001] 2 WLR 480
R v Quayle & ors [2005] 1 WLR 3642 Court of Appeal
R v Shayler [2002] UKHL 11
R. v. Gladstone, [1996] 2 S.C.R. 723

Bibliography: Criminal Law Text, Cases and Material, Oxford 12th Edition 2013 Jacqueline Martin, Tony Storey, Unlocking Criminal Law (4th edition Routledge 2013) Cases R v dudley and stephens (1884) 14 qbd 273 Southwark London Borough Council v Williams (1971) 2 AER 175 Buckoke v GLC [1975] Ch 655