Necessity is a ‘gateway to anarchy’ or a just addition to the criminal law

March 22, 2018/in Criminal /Private Law Tutor

“Necessity would open a door which no man could shut…the plea would be an excuse for all sorts of wrongdoings’. (Lord Denning, Southwark LBC v Williams [1971] Ch655)

Necessity is accounted for in the English law as a general defence which can be integrated and is very closely associated with the duress of circumstance and lesser so the duress of threat. Firstly in reference to the duress of circumstance the defendant can be compelled to act in compulsion due to the circumstance he may find himself in and as shown in Northen Ireland v Lynch (1975) the duress of threat can be seen as a type of necessity in overall broadness.

The defences labelled out above are all not available for murder or the attempt of murder however can be for manslaughter due to the offence needing no mens rea to rid a body of a life.

The defence of necessity has been recognised in many cases such as in F v West Berkshire Health Authority (1990) whereby a woman who lacked mental capacity had a sterilisation operation carried out due to the fact of a doctors thinking that there was high risk of her getting pregnant and it could cause psychiatric harm to the patient. The courts said that the doctors were indeed justified in carrying out the operation and in my opinion a general defence of necessity was further recognised.

The integration of necessity into the duress of circumstance is of a wide substantial debate both by the courts and by parliament. The duress of circumstance is whereby the defendant commits a criminal offence due to the circumstances he found himself in and the only way to save him from death or serious bodily harm was to take the action he did. The reason it can be seen to integrate into necessity is due to the fact you need to take an action to prevent a greater harm to yourself or others including relations (Ortiz 1986). The facts of duress and necessity have caused a somewhat confusion as some may label it as duress of necessity but for obviousness this is not the case. One factor to this debate that must be pointed out is that of Woolf LJ in Conway (1998). Here Lord Woolf stated that “Whether duress of circumstance is called duress or necessity does not matter”. He spoke of the indicated defences having the same limitation in a sense that if you do not do this the abstract would happen.

In reciprocal to the integration of necessity into duress the main trigger as to the defence of necessity being individual came from the case of Re A (2000). The judgements by the lords in this specific case talk about the concept of the lesser of the two evils (source 10 line 31 and Source 11 line 16). This case and the judgements of a precedent nature bring about a distinction. Necessity being that a lesser of the two evils had been justified and for that lesser to take place a criminal offence may need to be existent. It also further reinforces the proposition of the law in society to protect innocent citizens with no criminal intention or evil in mind.

The facts that the duress and necessity are not available for murder are evident however cases such as Adams(1975) and Gillick (1985) brought about a distinguished concept of concealed necessity. The concept hypnotises some of the elements required for compulsion and in turn necessity. The facts are they caused the proliferation of the defence of necessity and blinded the principle of intent for the judgements show some sign of distortion. In Gillick the principle of intention is seemed to be blinded in reference to the doctors authority.

Dudley and Stephens is a case which is very interesting and in context contracts with the Herald of free enterprise. In Dudley and Stephens the cabin boy was chosen to be eaten. Can that be seen as appropriate and yes there was an intention to kill but an innocent life of one who was on course for survival and not endangered the lives of others. In the Herald of free enterprise the person who was in a state of immobility was causing others harm as it put their lives at risk. Therefore the removal of that passenger indirectly would cause the survival of many others. As when in a situation of that nature the first element that would override the mind who be survival and you would be prepared to do anything for you and the others to survive and if anyone or anything was stopping the survival of you and others you would be prepared to remove that obstacle. Therefore these cases showed the contrasts in justifying necessity.

One factor the defence opened up was the one pointed out in the case of Williams (1971) by Lord Denning. If the defence of necessity was not given a rigour thought out then it would open loopholes. As should hunger be a suffice enough excuse for theft or homelessness an excuse to break the law of trespass. Well that was what this case cleared up and that is why there is a high level of restriction on this defence as it would allow a major gap in the law as it would seem ordinary for citizens to break the law for the own personal need.

In cases such as Bourne the defence have been allowed due to the defendant circumstances. It also is necessity without the defendants consent as shown in the case of F v West Berkshire Health Authority (1990).

My opinion is that the English law does places necessity in the context of balancing the fine now further stretched lines of what is morally correct and what is morally wrong. In cases which include killing (not murdering as the mind overrides the basic desire and causes the element of survival) the defence of necessity is finely placed which keeps in regard the position of all and as in duress the ‘sanctity of human life’. However I must say the courts in the context of concealed necessity can in themselves cause a somewhat confusion and distort element however do so in being morally right as the law is placed to protect citizens who do good not those who commit otherwise.

In conclusion I firmly believe that the defence of necessity is recognised as a defence in the law. The case of Re A firmly gave the indication of a general defence however after analysing the scope it seems as though the defence can be restricted and the is no clarity as to its use. Also the facts the defence can be used for protection citizens but can also open certain loopholes have restricted the proper development of the general development of necessity. For the defence of necessity to be recognised as a full defence highly and maturely distinguished from duress a lot needs to be done in terms of definition and jurisprudence only then would the full scope of the defence be acceptable but for now it is a very shallow and narrow defence.


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