The Defence of Necessity

The defence of necessity has an ambiguous position because many writers have denied its position in English law[1]. However, it has already been successfully implemented in several cases. This defence occurs when the defendant is forced by circumstances to breach the law because he has no other choice but to commit the offence. But it is very important to mention that the defence of duress resembles to a great extent the defence of necessity because in both cases the offence is inevitable[2].

According to Nathan Tamblyn, the defence of necessity is subjectively formulated since lives are going be lost anyway, at least some others will be saved[3]. But based on this view, it has a good background in terms of the right to physical integrity, but if there is an urgent situation when the defendant should act appropriately to prevent greater harm, then the defence should be extended in the case of murder. Practically speaking, the defence of necessity may arise when one infringes on the right to property, that is, for example, to violate the entry of a house to call for help[4].

Following David Wasserman's opinion, the defence of necessity as defined does not justify the defendant to kill an innocent individual to save his own life[5]. In other words, it is clear that the fact of killing an innocent person can be more difficult to justify rather than self defence, that needs a reasonable justification of killing.

The defence of necessity appeared, in the notorious case of R v Dudley and Stephens (1884) when three shipwreckers stranded for several days at the sea, they decided to kill a boy aged 17 years old to eat him in order to survive. When they were rescued, they were charged with murder. When they invoked the defence of necessity, the court dismissed the position that they prevented a worse evil and this defence is not available in cases of murder.[6]

It is of utmost importance Lord Coleridge's stated on the excuse of the act of the defendant. ‘'A man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime''[7].

However, the general rule is that necessity is no defence to murder, but through the court's decision it shows the conviction of the defendants to death, but leaves the margin to be pardoned by the Crown. This controversial choice made by the court was that an unprecedented assumption for the facts of a large society which is certainly divided. Furthermore, there was also the fear that the public would interpret an acquittal as a justification for the act and ‘’such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime’’[8].

In the case of R v Howe, it was stated that the defence of duress by threats does not constitute a defence in cases of murder. In this case, a person immediately threatened the defendant that he would kill him unless the defendant kills the victim[9]. In this case, if murder was allowed by the defence of necessity on the basis of the current verbal, the defence would have succeeded, and here is the defect.

According to Glanville Williams, it is that the defence of necessity should not be provided in cases of murder, because there is nothing to separate two lives that are considered legally equal[10], but a part of academic writers argues that in other events defence must be available as in the Siamese twins case, where some guidelines were set out for very special cases[11].It is important to mention that the Dudley case, by reason of nature of its events, has overshadowed the defence of necessity for many years, resulting in a preconception by the courts and eliminating it from the legal map.

Based on Sir James Stephen the test of necessity is laid out, ‘’An act or omission which would otherwise be offence may be excused if the person accused can show that it was done or omitted to be done only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purposes, and that the evil inflicted by it was not disproportionate to the evil avoided’’[12].

In the case of R v Shayler [2001], Lord Woolf CJ considered ‘’that the distinction between the defence duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts the law has tended to treat duress of circumstances and necessity as one and the same[13].

However, in the case of Re F (Mental Patient: Sterilisation) [1990] Lord Goff has formulated the criteria that require the defence of necessity. "To fall within the principle, not only must there be a necessity to act when it is not practicable to communicate with the assisted person, but also the action taken must be such that a reasonable person would in all circumstances take, acting in the best interests of the assisted person[14]". With these guidelines given by Lord Goff, the defence of necessity can be extended even in cases of murder and is not limited to rare cases, but in the end, it was recognised in medical cases where it is used to deny the criminal responsibility of a doctor to people who are ‘’incompetent’’[15].

After a century, the issue of defending necessity was restored in the case of Re A (Children) (Conjoined Twins: Surgical Separation) [2000] [16] and in particular whether it is a defence in case of murder. In this case, Jodie and Mary were conjoined twins, so they needed an emergency surgery to separate them. It had to be selective separation, which would lead to Mary's death, but it would give Jodie the opportunity of "a distinct good quality of life." The probability of death for Jodie was 5% -6% during the separation procedure, which was recommended by the doctors because the choice of being permanently conjoined would lead to the death of both siblings with probability within a few months and at best within 2 years. The rationale for the decision was the principle of the welfare of the child, the principle of sanctity of life, and what is the least damaging solution, albeit accepting the doctors' proposal of selective separation, since they left great possibilities of death for both in the case of being permanently conjoined. The Court of Appeal approved the above principles of the defence of necessity, as set out in Stephen's Digest of Criminal Law.

 However, it is important to distinguish the two cases because Mary was destined for death by the natural evolution of things as opposed to the boy in the Dudley case chosen for killing. The aftermath of the case with the two Siamese was that after a century the defence of necessity, he escaped from the ‘’black shadow’’ of the Dudley case and the Re A case places the guidelines for future use of necessity even in the case of murder.

 Moreover, the necessity is a "complicated" defence because very rarely and in extraordinary cases it can be enforced by the courts[17]. For instance, in the case of R v Kitson [1955] the defendant was a passenger in a car who had alcohol and slept on the passenger seat. When he woke up, he found that the driver had left the driver's seat and the car was moving down a hill and he managed to steer the car into a grass at the bottom of the hill. The defendant was convicted of driving under the influence of alcohol[18]. In this case, on the facts, he could succeed in the defence of necessity because the defendant tried to avoid his injury but the courts were reluctant to make the lawful the lawless[19].

Nevertheless, the main question that remains if the defence of necessity should be offered to the defendant because in the end it may be lawlessness prevailing. Essentially until recently it was considered that the defence of necessity should not be offered as a defence to the defendant and there was a reluctance of the courts to follow the lawlessness.

As per Lord Denning in the case of London Borought of Southwark v Williams [1971], stated ‘’ The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut’’[20]. After a few years Lord Denning in Buckoke v GLC [1975], stood in the same line that even a fire vehicle driver in his field of vision sees a flaming house burning with a man in the window asking for help he must stop at the red light because he violates the Road Traffic Regulations[21]. The outcome at this point is that necessity is limited by social consequences.

A very significant observation from Dennis was that the defence of necessity results from a non-criminal behaviour such as in Re A (Children) (Conjoined Twins: Surgical Separation) [2000], where the twins came Siamese in the world and must be confined to medical situations[22]. The counterargument by Gardner is that the courts are not limited to the well-being of the patients but also to the well-being of society[23]. The main issue at this point is who guarantees that the defendant did not have the mens rea for the offence, for example someone may be fasting for days in order to go to a supermarket with the mens rea of theft and say that if I did not steal some goods I would die of hunger.

One more, factor that needs to be analysed whether the defence of necessity has a position as a general defence to examine the proposals made by the Law Commission in order to ascertain the reason for the confusion.

However, reform efforts have begun since 1879 and before Dudley's case. The Royal Commission considered whether the defence of necessity should be included as a separate defence but rejected it because they were in no way ready to justify the lawlessness. In addition, it was decided to leave the question of necessity at the discretion of the court and to make the enforcement depending on the circumstances of each case[24].

Even at this time when the courts were reluctant to accept the necessity the question was left unanswered about what utility it had. In 1974, the Law Commission recommended codified proposals for a defence of necessity in English law.

The finding has shown a tendency towards creating a general defence of necessity, but with many concerns and in 1977 it stopped this investigation because the result was to legitimise euthanasia[25].

The reasons behind these concerns were Lord Denning's recent reports in Southwark LBC and Buckoke, and the margins would be narrowed to which offences the defence could use. In other words, the Law Commission adopted Lord Denning's position that the operation of necessity would be uncertain, and it was preferable that the defence was not available for minor and serious offences[26].

Based on Nicola Padfield’s opinion, the Law Committee's logic did not have the effect of solving the problem but making it even more complicated, and what had to be done was the duress of circumstances and threats, to accompany together in order to leave space for the defence of necessity[27].

Furthermore, following Williams theory the move of Law Commission to abolish the defence of necessity it was unexpected, because they had not convincingly substantiated why minor offences should not be offered as defence to the defendant and that medical necessity requires such a defence which was confirmed in the Re A (Conjoined twins) case. In addition, the choice of the Law Commission to promote, the duress by threats was inaccurate by reason of it could be treated as necessity and in medical cases there would be a huge gap[28]. However, Williams criticised the working paper that it was intended to select the lesser of the two evils and by abolishing necessity in offences, there would not be a defence in cases of offences lesser than death committed under the threats.

The same attitude was held by Huxley and criticised the Law Commission because its object is to reorganize the law where there are gaps and not to eliminate it. It also refers to the proposal of the Law Commission to be left to the public prosecution if the defendant is entitled to raise the defence of necessity[29]. At this point, it is important to emphasize that this proposal loses the distinction between the courts and the public prosecution authority and refers to Article 6 of ECHR, right to fair trial, and ignores private prosecutions.

The main conclusion drawn from the work of the Law Commission in 1974 is that they lead to an impasse because it extends the defence of duress on several occasions but at the same time removes the defence of necessity, which is incompatible.

Moreover, in 1985 the Law Commission proposed the defence of circumstance in the place of necessity except for the offence of murder[30]. In 1992, the Law Commission proposed that the "'duress of circumstances" should also cover offences of murder, and in particular clause 26 provides ‘’ No act of a person constitutes an offence if the act is done under duress of circumstances’’[31]. The issue which arises here is that the Law Commission is firm on the same line for necessity and is simply repeated[32].

Even in 1993, the Law Commission returned to the 1879 approach and left it to common law[33]. The most important approach at this point was an addition to the 1879 approach that the burden of proof should be considered on the balance of probabilities[34]. In 2006, the Law Commission did not make any mention to the defence of necessity, albeit it was in its competence.[35]

Generally speaking, there has been a depreciation by the Law Commission for many years as far as the reform of the defence of necessity is concerned, and this should be a matter of concern for the British Parliament, because in a forthcoming affair of this nature it will lead to a stalemate. Thus, in the case of Quayle and others [2005], the defence of necessity was recognised, but the Court of Appeal rejected the defence[36]. The conclusion is that not only the Law Commission does not make the big step of change but even the courts.

It is important to mention that the necessity effectively forms the basis of other defences[37]. For instance, section 87 of the Road Traffic Regulation Act 1984 states that the public safety authorities such as ambulances, police and fire vehicles may exceed the speed limit in exceptional circumstances[38].

Furthermore section 3 of the Criminal Justice Act 1967 provides the use of force in making arrest. ‘’A person may use reasonable force in the circumstances of prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’’[39]. On the basis of the wording of the present law, the legislator uses the word ''use such force as is reasonable in the circumstances in the prevention of crime, namely in other words leaving a hint of neutralisation of the actor. However, the issue, is that the police are not accepting the killing but only the arrest[40]. At this point the usefulness of necessity is visible in everyday life, because these safety services that can save hundreds of lives every day.

At this moment in the United Kingdom there is a great academic battle over whether the duress of circumstances and necessity are two defences with different names but with the same legal definition. In the case of R v Conway [1988], Lord Woolf stated that “whether duress of circumstances is called ‘duress’ or ‘necessity’ does not matter. What is important is that…it is subject to the same limitation as the ‘do this or else’ species of duress.”[41] However, he concluded that the defence of necessity can be invoked in cases of reckless driving, when the defendant will be examined under what conditions he was driving, he has avoided his death or the severe bodily harm of other persons.

Additionally, according to Lindsey, she argued that necessity arose from the duress of circumstances[42] while Lord Hailsham in the case of R v Howe [1987] stated that duress is a type of defence that stems from necessity[43].Although many defences may resemble because they share many common features, it requires a codification of the law. According to Professor Ormerod, the defences between duress and necessity need to be separated so as to avoid future confusion[44]

However, based on Gardner who stays in the same line with Professor Ormerod, in order to clarify the issue of the two defences is that there are huge possibilities for categorisation and distinction between them[45]. The way of categorisation already exists because the two defences between them have different theoretical approaches, namely in other words necessity is considered as a justificatory defence and duress is considered as an excusatory defence[46]. Even in the cases where the defence of necessity has succeeded the theoretical discussions were missing[47].

The difference between the two terminologies is indicated by the origin of the danger or the threat. This is a prerequisite for excluding the defendant's liability, and is a distinction between a threat from other people in the duress by threats and the wider necessity situation that may arise from other circumstances in an emergency situation[48].

Yet another colossal obstacle that derives from eliminating the defence of necessity is the cases that have the element of self-defence. Based on Smith’s theory, necessity is a fundamental requirement of self-defence and is very rarely questioned[49]. In other words, necessity effectively forms the basis of self-defence.

In such cases, the defendant has no choice of personal security and should use the principle of proportionality. Another important element is the assessment of the imminent risk from the defendant[50]. For instance, if in a terrorist attack the ''victim'' provokes and shoots with a gun towards the police officer and the lives of hundreds of people are directly at risk and the policeman manages to neutralise the terrorist then the defence of self defence will succeed, but this will succeed because it is available through necessity.

Notwithstanding, many academic writers disagree on whether the defendant has the obligation to retreat from the challenge before he reaches self-defence. That statement is supported also by David Rodin the defendant has a duty first to avoid the provocation in order to not to reach necessity[51]. Thus, as a Lord Widgery in the case of R v Julien [1969] it was stated that self-defence cannot be invoked in the event that the defendant does not attempt to retreat independently of the circumstances of the incident[52].

Although, this approach in 2019 may also be inaccurate because in the chaos and agitation of a terrorist attack, there are very different emotional feelings for every person who at that critical point does not know how anyone would face it. For instance, the terrorist attack in London in June 2017, a football fan attacked the three terrorists who had knives, to delay them from killing innocent people, resulting in receiving eight knife wounds and consequently getting seriously injured [53]. But if this man managed to kill one of the terrorists, he would have to be considered a hero and would succeed in the defence of necessity.

Another striking illustration of the defence of necessity is the terrorist attack outside the British Parliament in March 2017 at the peak of the road. The terrorist beat the pedestrians on the bridge where he ended up on balustrades outside the Westminster parliament. The driver then went out from the vehicle with a knife where he killed a policeman and a minister's bodyguard executed the terrorist. The jury at the Old Bailey in London decided that the killing of the terrorist was justified by the interpretation of the facts and the bodyguard honestly believed it was necessary in his defence and the defence of others[54].

Summarising, the self defence is one of the most significant defences because they can relieve the defendant of serious offences that are not responsible but without necessity this could not operate.

Synopsize in respect of the issue of elimination of the defence of necessity from the legal map would not be possible because a number of problems will be presented daily, for instance, an out-of-service doctor which is driving his vehicle will be faced with the dilemma exceeding the speed limit to reach the emergency site. As Michael Bohlander said in the 2001 terrorist attack in New York, the air force planes did not hit the air planes before they hit the twin towers in an area where there was not a lot of crowds[55].Thus, in the case of R v Abdul – Hussain [1999] it was considered that the necessity is a possible defence for hijacking [56].However, the rapid increase in terrorist strikes does not leave a margin for the defence of necessity for removal from the legal map.

Nevertheless, the scales are leaning towards the upgrading of the defence of necessity. The conclusions are that significant changes need to be made and to be organised in order to be available to the defendant. The cornerstone of the problem is characterised by the word "chaos" and in order to avoid the dilemma in the future, a research by the Law Commission must first be made to separate the positive and negative aspects of the defence. Then a draft bill should be incorporated explaining where the defence of necessity is available. The rationale for this change is to discharge the courts out of cases of lawlessness. The most important part is to become an independent defence and to escape the dark shadow of defence of duress and to lay down legal frameworks to examine the defendant's judgement of the thinking during the time of the decision on the offence. In overall this assignment agrees with academics which points out that it should be maintained as an independent defence in England and Wales.

[1] Nicola Padfield, Criminal Law (8th edition Oxford, 2012) 118

[2] Christina Mcalhone and Natalie Wortley, Criminal Law (4th edition Sweet & Maxwell, 2016) 536

[3] Nathan Tamblyn ‘Necessity and murder’ ‘’The Journal of Criminal Law’’ (2015) 79 (1), 46 - 54

[4] A. P. Simester & R. Sullivan, Criminal Law: Theory and Doctrine (3rd edition Oxford, 2007) 718

[5] D. Wasserman ‘Justifying Self- Defence’ ‘’Philosophy and Public Affairs’’ (1987) 16 (4), 356- 378

[6] R v Dudley and Stephens (1884) 14 QBD 273

[7] ibid

[8] ibid

[9] R v Howe [1987] AC 417

[10] Glanville Williams, Textbook of Criminal Law (2nd edition, Stevens & Sons Ltd, 1983) 603

[11] Nathan Tamblyn ‘Necessity and murder’ ‘’The Journal of Criminal Law’’ (2015) 79(1), 46 - 54

[12] Sir James Fitzjames Stephen, Digest of Criminal Law (1st edition, Macmillan, 1883) 19

[13] R v Shayler {2001} 1 W L.R. 2206

[14] Re F (Mental Patient: Sterilisation) [1990] 2 AC 1

[15] W. Chan & A. P. Simester ‘Duress, Necessity: How Many Defences?’ ‘’Kings Law Journal’’ (2005) 16 (1),121- 132

[16]Re A (Children) (Conjoined Twins: Surgical Separation)  [2000] 4 All ER 961

[17] Smith and Hogan’s, Text, Cases, And Materials on Criminal Law (11th edition, Oxford University Press, 2014) 398

[18] R v Kitson [1955] 39 Cr App R 66

[19] M. Wasik ‘A Case of Necessity’ ‘’C.Law Review (2014) 544- 548

[20] London Borought of Southwark LBC v Williams [1971] Ch 734,

[21] Buckoke v GLC [1975] Ch 555,

[22] Ian Howard Dennis ‘On Necessity as Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse’ ‘’Criminal Law and Philosophy (2009) 3 (1), 29- 49

[23] S. Gardner ‘’Direct Action and the Defence of Necessity’ ‘’Criminal L. R.’’ (2005) 371

[24] Criminal Code Bill Commission, Report of the Royal Commission appointed to consider The Law Relating to Indictable Offences (C 2345, 1879)

[25] Law Commission, Codification of Criminal Law General Principles, Defences of General Application (Law Com No 55 1974)

[26] ibid

[27] Nicola Padfield, Criminal Law (6th edition Oxford, 2008) 112

[28] Glanville Williams ‘Necessity’ ‘’Criminal Law Review’’ (1978) 128

[29] P. H. J. Huxley ‘Proposals and Counter Proposals on the Defence of Necessity’ ‘’Criminal Law Review’’ (1978) 141

[30] Law Commission, Reform to the Law Commission on the Codification of the Criminal Law (Law Com No 143 1985)

[31] Law Commission, Legislating the Criminal Code. Offences against the Person and General Principles (Law Com No 122 1992)

[32] S. Gardner ‘’Direct Action and the Defence of Necessity’ ‘’Criminal L. R.’’ (2005) 371

[33] Law Commission, Legislating the Criminal Code. Offences against the Person and General Principles (Law Com No 218 1993)

[34] ibid

[35] Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304 2006)

[36] Quayle and others [2005] EWCA Crim 1415; [2005] 1 WLR 3642

[37] C. M. V. Clarkson ‘Necessary Action: A New Defence’ ‘’Criminal Law Review’’ (2004) 81, 81- 95

[38] Road Traffic Regulation Act 1984, s.87

[39] Criminal Justice Act 1976, s.3

[40] Vikram Dodd and Ewen MacAskill, Shoot to Kill: What is the UK’S policy? (November 2015) < https://www.theguardian.com/uk-news/2015/nov/17/shoot-to-kill-what-is-the-uks-policy> accessed by 22/01/2019

[41] R v Conway [1988] 3 All ER 1025

[42] Jaime Lindsey ‘A New Defence of Necessity in the Criminal Law’ ‘’UCL Jurisprudence’’ (2011) 17, 122

[43]R v Howe [1987] AC 417

[44] D. Ormerod ‘Necessity of Circumstances’ ‘’Criminal Law Review’’ (2006) 148

[45] S. Gardner ‘’Direct Action and the Defence of Necessity’ ‘’Criminal L. R.’’ (2005) 371

[46] P. H. Robinson ‘Criminal Law Defenses: A Systematic Analysis’ ‘’Columbia Law Review’’ (1982) 82(2) 234

[47] S. Gardner ‘’Direct Action and the Defence of Necessity’ ‘’Criminal L. R.’’ (2005) 371

[48] Itzhak Kugler ‘Necessity as a Justification in Re A (Children) (Conjoined Twins: Surgical Separation)’ ‘’Journal of Criminal Law’’ (2004) 68 (5) 440- 550

[49] J. C. Smith, Justification and Excuse in the Criminal Law (1st edition, Steven &Sons 1989) 101

[50] Nicola Padfield, Criminal Law (6th edition Oxford, 2008) 116

[51] David Rodin, War and Self- Defence (1st edition, Oxford University Press 2003) 40

[52] R v Julien [1969] 1 W LR 839

[53] Jamie Grierson, Stabbed Millwall fan recounts fight with London Bridge attackers (June 2017) < https://www.theguardian.com/uk-news/2017/jun/06/millwall-fan-roy-larner-london-bridge-attackers> accessed by 24/01/2019

[54] Haroon Siddique, Westminster attacker lawfully killed by minister’s bodyguard, jury finds (October 2018) < https://www.theguardian.com/uk-news/2018/oct/12/westminster-bridge-attack-khalid-masood-lawfully-killed-inquest-concludes> accessed by 24/01/2019

[55] Michael Boglander ‘Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked Airplanes – Taking Human Life and the Defence of Necessity ‘’Journal of Criminal Law’’ (2006) 70 (2) 147- 161

[56] R v Abdul – Hussain [1999] Crim. L.R 570