Defence of necessity

Defence of necessity is a fascinating aspect of criminal law that allows an individual to justify committing an offence in situations where they acted under an imminent danger or threat. In order to explore this legal concept further, this article will provide a comprehensive understanding of defence of necessity's definition, basic principles and key elements. Moreover, a distinction will be drawn between defence of necessity and duress. Delve into renowned defence of necessity cases in UK law and examine the factors influencing outcomes in such cases. Throughout this analysis, various examples and scenarios will be presented, including medical situations and environmental protest cases. However, recognition of situations where defence of necessity does not apply is also essential. This article will shed light on exceptions, limitations and boundaries, while emphasising the significance of imminent threats within this legal defence. Discover the subtle yet critical differences between imminent and remote threats, as well as their implications for this captivating area of law.

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Contents
Table of contents

    Defence of Necessity: Definition and Basics

    Defence of necessity is a legal defence in criminal law, which allows a defendant to argue that they committed a crime in order to prevent a greater harm or evil from occurring.

    Understanding the Defence of Necessity in Criminal Law

    In criminal law, the defence of necessity arises when a person is faced with a situation in which they must choose between committing a crime and allowing a greater harm to occur. This defence is based on the understanding that sometimes, a person's actions may be morally justified, despite being in violation of the law. In such cases, the defendant may be acquitted if they can successfully prove that their actions were necessary to prevent a greater harm.

    For example, suppose a person breaks into a pharmacy to steal medication for a sick family member who is in imminent danger of dying. In this case, the person could argue that their crime was necessary to save the life of their loved one, and thus, they should be acquitted.

    However, the defence of necessity is not without limitations. It is only available in certain circumstances, and the burden is on the defendant to prove that their actions were justified. Some common factors that may be considered when determining the availability of this defence include the immediacy and seriousness of the threat, the proportionality of the defendant's actions, and whether there were any reasonable alternatives to committing the crime.

    Key Elements of the Defence of Necessity

    To successfully argue the defence of necessity, a defendant must demonstrate:
    • 1. That there was an imminent and serious threat or harm;
    • 2. That their actions were necessary to prevent the harm;
    • 3. That there were no reasonable legal alternatives available;
    • 4. That the harm prevented was greater than the harm caused by their actions.
    ActionImminent and serious threatNecessary to prevent harmNo reasonable legal alternativesGreater harm prevented
    Breaking and enteringFamily member in imminent danger of dyingPharmacy closed, no other access to medicationNo time to seek help from authoritiesFamily member's life saved
    These elements may vary slightly depending on the jurisdiction. It is important for a defendant to understand the specific requirements for their jurisdiction.

    Distinction between Defence of Necessity and Duress

    Both duress and necessity are legal defences that can be used in criminal cases. However, there are some key differences between the two that are important to understand.

    Duress occurs when a person is coerced, threatened, or forced to commit a crime under the pressure of another party. In this situation, the person believes that if they do not commit the crime, they will face harm or death at the hands of the coercing party. For duress to be a valid defence, there must be a direct and immediate threat, the person must have acted under fear of harm, and there should be no reasonable opportunity to escape or avoid the threat.

    On the other hand, the defence of necessity is not based on coercion or threats from others. It arises when a person commits a crime to prevent a greater harm from occurring, even in the absence of external pressure. Whereas duress focuses on the actions of others, necessity is more concerned with the consequences of committing the crime versus not committing the crime. In short, while both duress and necessity are legal defences in criminal law, they differ in their requirements and underlying principles. Understanding these differences is crucial for defendants who wish to use one of these defences in their case.

    Examining Defence of Necessity Cases

    Analysing seminal cases in UK law can provide valuable insights into how the defence of necessity has been applied and how it has evolved over time. Two notable cases that demonstrate the complexities surrounding the defence of necessity are R v Dudley and Stephens and R v Shayler.

    R v Dudley and Stephens: The Lifeboat Case

    The case of R v Dudley and Stephens (1884) remains one of the most famous criminal law cases involving the defence of necessity. This case involved the survivors of a shipwreck who were stranded on a lifeboat. As they began to starve, Dudley and Stephens decided to kill and eat a younger, weaker cabin boy named Richard Parker to ensure their own survival. When they were eventually rescued and brought to trial, they claimed they were driven by necessity and that their actions were justified in order to save their lives. \noindent The key elements of this case revolved around:
    • Imminence of death: The defendants argued they would have died of starvation had they not killed Parker to survive;
    • Moral justification: Dudley and Stephens contended that sacrificing Parker's life was morally justified to save the greater number;
    • Rule of law: The judges in this case were tasked with determining if these actions could be legally excused under the defence of necessity.
    In a landmark ruling, the court rejected the defence of necessity and convicted Dudley and Stephens of murder. The court reasoned that to allow such a defence would lead to a slippery slope and undermine the value of human life and public order. The decision set a precedent that the defence of necessity should not apply in cases of murder or cannibalism.

    R v Shayler: The Whistleblower Case

    The case of R v Shayler (2001) involves a former MI5 officer, David Shayler, who disclosed secret information to a newspaper in order to expose alleged illegal acts committed by the security service. At his trial, Shayler argued that he had acted out of necessity to prevent further harm and protect national security. He relied upon three factors to support his defence:
    1. Exposure of illegal conduct: Shayler believed that the information he disclosed exposed serious misconduct within MI5;
    2. Public interest defence: He argued that the disclosure was in the public interest and necessary to protect democratic values;
    3. Cover-up of wrongdoings: Shayler claimed that he had tried to raise his concerns internally but was ignored or silenced.
    However, the court dismissed Shayler's defence of necessity, stating that a higher degree of seriousness was required for it to be successful. Furthermore, they noted that other avenues existed for Shayler to raise his concerns about MI5's conduct, rather than disclosing the information to the press. This case demonstrates that the defence of necessity may not be applicable in situations of whistleblowing if the perceived harm does not reach the required level of seriousness.

    Factors that Influenced the Outcome of Defence of Necessity Cases

    Various factors can shape the outcome of a defence of necessity case, including the nature and severity of the crime, the immediacy of the threat, the availability of alternatives, and the balance between the harm caused and the harm prevented. Some key determinants of successful necessity defence cases include:
    • Proportionality: There should be a balance between the harm caused by the defendant's actions and the greater harm they sought to prevent;
    • Immediacy: The threat or harm that the defendant seeks to avoid must be imminent and not speculative or remote;
    • Legal alternatives: The defendant must establish that no reasonable alternatives were available to prevent the harm without breaking the law;
    • Moral justification: The courts may consider whether the defendant's actions were morally justifiable in the circumstances.
    By carefully examining the outcomes of necessity defence cases, it is possible to identify patterns and principles that can guide future decisions in this complex area of law. Understanding these factors can help legal practitioners better navigate the circumstances in which the defence of necessity may be successfully raised.

    Analysing Defence of Necessity Examples

    In order to better understand how the defence of necessity operates in practice, it is helpful to examine a variety of real-life scenarios where this defence has been invoked. These examples can provide insight into the considerations and factors that courts take into account when assessing the validity of a necessity defence claim.

    Defence of Necessity Scenarios in Criminal Law

    Two areas where the defence of necessity has been particularly relevant are medical situations and environmental protest cases.

    Medical Situations and Defence of Necessity

    Medical emergencies often give rise to complex ethical and legal dilemmas. In some cases, individuals may find themselves faced with situations where they believe breaking the law is necessary to save a life or prevent serious harm to another person. Some common scenarios where the defence of necessity might apply in a medical context include:
    • Mercy killing or euthanasia: When a person, usually a close family member, takes the life of another person who is suffering from a severe and incurable medical condition, with the intent of ending their pain and suffering;
    • Stealing medication: As previously mentioned, a person might break into a pharmacy to obtain medication for a critically ill loved one when no other legal alternatives are available;
    • Assisted suicide: When a person helps another individual, usually suffering from a terminal illness, to end their life in order to alleviate their pain and maintain their dignity.
    In these situations, courts often have to grapple with the competing interests of upholding the rule of law and recognising that individuals may be faced with morally difficult decisions in dire circumstances. The defence of necessity can play a crucial role in these instances, however, its availability and scope might vary across different jurisdictions.

    Environmental Protest Cases and Defence of Necessity

    Environmental activism often relies on acts of civil disobedience to raise awareness and draw attention to pressing issues, like climate change, deforestation, and pollution. In some instances, environmental protesters may resort to tactics that involve breaking the law, such as disrupting traffic, trespassing on private property, or damaging industrial equipment. In these cases, protesters may argue that their actions were necessary to prevent greater harm, like environmental destruction or a threat to public health. Some notable examples of environmental protest cases where the defence of necessity has been raised include:
    • Anti-nuclear protests: Demonstrators opposing the construction or operation of nuclear power plants, who have trespassed or caused damage to such facilities, may claim their actions were necessary to prevent a greater danger from nuclear accidents or radiation;
    • Fracking protests: Activists who have disrupted fracking operations by trespassing or blockading sites could argue that their actions were necessary to protect the environment and public health from the potential risks associated with hydraulic fracturing;
    • Climate change activism: Protesters who engage in acts of civil disobedience to highlight the urgency of climate change may invoke the defence of necessity, arguing that the immediate threat posed by climate change necessitates extraordinary measures to bring about change.
    However, courts tend to scrutinize these claims carefully, considering factors such as the immediacy of the threat, the proportionality of the protesters’ actions, and whether there were alternative, lawful means available to address the issue.

    Assessing the Validity of Defence of Necessity Examples

    Evaluating the validity of defence of necessity claims involves considering various factors, including the specific circumstances of each case, the jurisdiction in which the case is being heard, and the applicable legal principles. Some of the key factors that courts assess when determining whether a defence of necessity should succeed include:

    1. Imminence of the threat: The harm that the defendant aims to prevent must be immediate or substantially certain to occur in the absence of their unlawful actions;
    2. Proportionality: The harm caused by the defendant's actions must not be disproportionately greater than the harm they sought to prevent;
    3. Reasonable alternative measures: The defendant must demonstrate that there were no lawful alternatives available to prevent the greater harm, and that they acted out of desperation;
    4. Voluntariness: The defendant's actions must be taken voluntarily, and they must not have contributed to the creation of the necessity situation;
    5. Legal principles: Courts will consider the implications of upholding a necessity defence on the broader legal system and potential consequences of setting such a precedent.
    By carefully analysing the defence of necessity examples and assessing the various factors involved in each case, legal professionals can better understand the complexities and intricacies of this unique area of criminal law. In turn, this can contribute to a more nuanced and informed approach to the defence of necessity in future cases.

    Defence of Necessity Exceptions: Limitations and Boundaries

    While the defence of necessity can be a powerful tool in criminal law, there are specific limitations and boundaries that must be considered. Understanding these exceptions is crucial for both defendants and legal professionals to ensure proper application of the defence.

    Recognising Situations where Defence of Necessity Does Not Apply

    In some cases, the defence of necessity is not available, either because the situation does not meet the required criteria or because the defendant's actions are inherently unjustifiable. Some common situations where the defence of necessity is unlikely to apply include:
    1. When the defendant caused or contributed to the emergency: If the defendant's actions or negligence played a substantial role in creating the greater harm they sought to prevent, they cannot rely on the defence of necessity;
    2. When the harm prevented does not outweigh the harm caused: If the defendant's actions result in a greater harm than the one they intended to prevent, the defence of necessity will be invalidated;
    3. When the defendant had a reasonable alternative course of action: If the defendant had legal means of addressing the emergency without resorting to criminal conduct, the defence of necessity will not be applicable;
    4. When the defendant's actions are considered inherently reprehensible: In cases where the action taken is deemed morally repugnant, such as murder or serious acts of violence, the defence of necessity is not available.

    Defence of Necessity and the Greater Harm Principle

    An important aspect of the defence of necessity is the greater harm principle, which underpins several of its requirements and restrictions. The greater harm principle states that a defendant can only successfully use the defence of necessity if they can prove that their actions prevented a more significant harm than the harm they caused. Some elements governed by the greater harm principle include:
    • Proportionality: The greater harm principle ensures that the defendant's actions are proportionate to the harm they sought to prevent. If the defendant's actions result in equal or greater harm than the harm they intended to prevent, the defence of necessity will not succeed;
    • Imminence of harm: To satisfy the greater harm principle, the harm the defendant sought to prevent must be imminent, meaning that if their actions were not taken, the greater harm would have occurred without any significant delay;
    • Lesser evil doctrine: The greater harm principle incorporates the lesser evil doctrine, which asserts that a defendant's actions are justifiable if they chose the lesser of two evils, even if their actions would normally be considered unlawful;
    • Reasonable alternatives: The greater harm principle necessitates that the defendant must not have had any reasonable legal alternatives to prevent the greater harm. If such alternatives were available, the defence of necessity will not apply.

    Defence of Necessity Denied: Examples and Rationale

    Analysing examples where the defence of necessity has been denied can provide further insights into its boundaries and limitations. Here are a few notable cases where the defence was rejected and the rationale behind each decision:

    1. United States v. Holmes (1841): In this case, the crewmembers of a sinking ship threw several passengers overboard to lighten the load and prevent the ship from sinking. While their actions may have saved the rest of the passengers, the court denied the defence of necessity, asserting that the crewmembers had no right to decide who lived and who died, and that their actions constituted manslaughter.
    2. R v. Martin (1989): Martin, a farmer, set a trap in his home to deter burglars, and when a burglar was subsequently injured by the trap, Martin claimed that his actions were necessary to protect his property. However, the court determined that Martin's actions were not a proportionate response to the risk of burglary, and the defence of necessity was denied.
    3. Heathrow Airport Climate Change Protest (2019): In this case, climate change activists attempted to use the defence of necessity after being arrested for trespassing on Heathrow Airport's runway. The activists claimed that their actions were necessary to draw attention to the dangers of climate change. However, the court rejected this defence, stating that the immediate harm caused by their actions exceeded the possible future harm that their protest aimed to prevent.
    These cases demonstrate that the defence of necessity may not apply when the defendant's actions are considered disproportionate, unnecessary, or morally indefensible. The courts must carefully balance the competing interests of upholding the rule of law and acknowledging the extenuating circumstances faced by defendants when determining the applicability of the defence of necessity.

    Defence of Necessity Imminent Threat Requirement

    The imminent threat requirement is a critical element of the defence of necessity, as it helps to distinguish cases where the use of this defence is justified from those where it would be inappropriate. Imminence requires that the danger or harm the defendant sought to prevent must be immediate or substantially certain to occur in the absence of their unlawful actions.

    Importance of Imminence in Defence of Necessity

    In the context of the defence of necessity, imminence serves several crucial functions, including:
    • Maintaining the moral and legal legitimacy of the defence: Imminence ensures that an accused person can only rely on the defence of necessity when the threat is genuinely immediate, thereby preventing abuse of the defence or its use for justifying otherwise unlawful conduct;
    • Preserving the rule of law: Imminence helps to protect the legal system by limiting the circumstances in which an individual can commit a crime to prevent harm, maintaining the principle that no one is above the law;
    • Balancing the interests of the individual and society: The requirement of imminence allows the courts to balance the competing interests of the defendant, who may have acted out of desperation, and society, which has an interest in maintaining order and upholding the law.

    Timeframe and Perceived Danger in Imminent Threat Analysis

    When evaluating whether a threat is imminent, courts consider several factors, including:
    • The timeframe in which the danger is expected to manifest: The greater the time that elapses between the defendant's actions and the expected occurrence of the harm, the less likely it is that the threat will be considered imminent;
    • The perceived danger: Courts will assess the defendant's perception of the threat at the time of their actions and whether their belief that the danger was imminent was reasonable given the circumstances;
    • Evidence of the threat: The courts will examine any evidence that supports the defendant's claim of an imminent threat, such as expert testimony or objective data on the likelihood of harm;
    • The severity of the potential harm: The more severe the potential harm, the more likely it is that a court will find the threat to be imminent, even if the harm is not certain to occur immediately.

    Imminent vs. Remote Threats: Understanding the Difference

    It is important to distinguish between imminent and remote threats in the context of the defence of necessity. Imminent threats are those that are immediate or substantially certain to occur without the defendant's intervention, whereas remote threats are those that may occur at some unspecified time in the future or are based on speculation. Here are some factors that can help differentiate imminent threats from remote threats:
    • Timeframe: Imminent threats typically involve a short or immediate timeframe, whereas remote threats may be more distant or uncertain;
    • Certainty: Imminent threats involve a high degree of certainty that the harm will materialise, while remote threats are more speculative in nature;
    • Preventability: Imminent threats are those that can be effectively prevented or mitigated by the defendant's actions, whereas remote threats may not be so easily averted;
    • Severity: Imminent threats often involve more severe potential consequences, while remote threats may be less harmful or impactful.
    In summary, the defence of necessity hinges on the concept of imminence, ensuring that only those who commit crimes to prevent genuinely immediate threats can rely on this defence. Understanding the difference between imminent and remote threats and the factors that contribute to this determination is crucial for legal professionals and defendants when approaching the defence of necessity.

    Defence of necessity - Key takeaways

    • Defence of necessity is a legal defence in criminal law that justifies committing an offence in situations with an imminent danger or threat.

    • Key elements of the defence of necessity consist of an imminent and serious threat, actions necessary to prevent harm, no reasonable legal alternatives, and the harm prevented is greater than the harm caused by the actions.

    • Distinction between defence of necessity and duress: necessity arises when a person commits a crime to prevent a greater harm from occurring, while duress occurs when a person is coerced, threatened, or forced to commit a crime under pressure from another party.

    • Imminent threat requirement is essential for a successful defence of necessity, as it ensures that the defence is only used when the harm to be prevented is immediate or substantially certain to occur.

    • Exceptions and limitations of the defence of necessity include situations where the defendant caused or contributed to the emergency, the harm prevented does not outweigh the harm caused, a reasonable alternative course of action was available, or the defendant's actions are considered inherently reprehensible.

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    Frequently Asked Questions about Defence of necessity
    What is the defense of necessity in the UK?
    The defence of necessity in the UK is a legal argument that permits a defendant to justify an act which would usually be considered unlawful under the assertion that it was necessary to avoid imminent harm or prevent a greater evil. This defence is available in limited circumstances and must meet specific criteria. The defendant must prove that the action was taken to prevent even greater harm and that no reasonable alternative was available. It is essential to note that the UK courts have historically been reluctant to accept this defence in many cases.
    What is the defense of necessity in tort?
    The defence of necessity in tort is a legal justification for an act that would otherwise constitute a tort, such as trespass or conversion, based on the principle that the action was necessary to prevent a greater harm or protect a vital interest. In UK law, this defence is narrowly applied and must meet strict criteria, including that the harm caused must be objectively less than the harm prevented, and there is no reasonable alternative. It is commonly invoked in emergency situations, such as entering a burning building to save a life. The defendant bears the burden of proving that the defence of necessity applies to their actions.

    Does defence of necessity exist?

    Yes, defence of necessity exists in the UK legal system. It is a common law defence that can be invoked when a defendant commits an unlawful act to avoid a greater harm or danger. However, the necessity defence has traditionally been narrowly construed by UK courts, and it is not applicable in all situations where harm is being avoided. The defence is primarily successful in cases involving lesser offences and where there is a direct and immediate link between the unlawful act and the greater harm being avoided.

    Does english law recognise a general defence of necessity?

    English law recognises a limited defence of necessity, which applies in specific situations where a defendant may argue that they committed a criminal act to avoid a greater harm. However, the application of this defence is quite narrow, typically used in cases involving duress, medical treatment, or escaping an imminent danger. It is not a general defence applicable across a wide range of offences and situations. Therefore, although recognised, it is not a general defence in English law.

    When can the defence of necessity apply?

    The defence of necessity can apply when an individual commits a crime due to an immediate and overwhelming threat to their life or the life of another, and there was no realistic and lawful alternative available. The defendant must reasonably believe that breaking the law was the lesser evil, compared to the harm they sought to prevent. This defence is not applicable for all crimes and its usage is limited in UK law.

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