Necessity in English criminal law

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In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person (which would fall under either duress or self-defence) and that the accused was in genuine risk of immediate harm or danger.

For the most part crimes that could be justified as necessary are minor in nature, such as driving over the speed limit to reach medical care, or damaging property to escape a fire. In almost all cases where a serious crime has taken place, necessity is unlikely to be a successful defence as courts have mostly taken the view that directly harming another person could not be justified even by extreme circumstances unless it directly prevented immediate serious harm or death.[1] Even if a person were already likely to die, and their death would allow others to survive, killing them is not necessary until the point where harm is imminently likely to occur to the others and if that harm is not immediate, then necessity cannot apply. As such the circumstances where necessity could apply to a serious crime are extremely narrow, involving two or more people in an immediately life-threatening situation where only one could survive. Even in this situation, as the law does allow for a person not to take actions that would save another person if to do so would put their own life at risk, it is seldom strictly necessary for one person to kill another, one allowing the other to die in the course of the situation, then saving themselves.

The Crown Prosecution Service has historically chosen to exercise its discretion not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances, and as such where necessity is a strong defence.

History

This defence was used in the early

natural causes, the sailors killed the boy intentionally and were guilty of murder. There was some degree of necessity arising from the threat of starvation
but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally.

Dudley and Stephens were convicted of murder and sentenced to be hanged; however, their sentence was later reduced to just six months in prison. The third man, Brooks, was not tried, as he had not participated in the murder. The principles from this case form the basis of the defence of necessity not being available for murder.

The principles

There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defences of necessity and

Perka v The Queen
(1984) 2 SCR 232, Dickson J. held at p250 that

If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.

When considering necessity in R v Cole (1994) Crim. LR 582

LJ
. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offence charged. This defendant robbed two building societies in order to repay debts. The form of defence was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.

Medical necessity

In Quayle and Others v R; Attorney General's Reference (No. 2 of 2004) (2005) EWCA Crim 1415 each defendant appealed convictions associated variously with the cultivation or possession of

morals
, or the protection of the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, but their conclusion was that this was a policy matter more properly within the remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall within the protection of Article 8 ECHR.

In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road accident. He was charged with possession under s5(2)

inhuman or degrading treatment
) does apply to the state. The defendant argued that using cannabis was the only way in which his symptoms could be alleviated and that he could not do so without committing a criminal offence. Thus, the state, by prosecuting him, subjected him to degrading treatment. The court said that the state, by refusing cannabis, neither did nor refrained from doing anything that would subject the defendant to degrading treatment. The state had done nothing to change the defendant's condition for better or worse, and there was nothing to require the court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. The court applied Quayle where the focus was on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose and effect of the legislative scheme.

In

Dudley & Stephens
on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley. The decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.

References

  1. ^ "Necessity in Criminal Law". IPSA LOQUITUR. Retrieved 23 October 2019.
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