Necessity

• 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.

• 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).

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.

• 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

• 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

• 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

• 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