What is the necessity defence?
This is a Justificatory defence - it is a justified source between two evils.
It does not require a threat of personal injury or death but merely a choice between two evils.
It is different to duress.
Dudley and Stephens 1884
Medical cases;
F v West Berkshire Area Health Authority 1989 and Bourne 1939
Re A 2001 - it would appear that necessity may be used as a defence to murder but only in
exceptional and limited circumstances.
Elements of necessity;
- D commits the offence in order to avoid inevitable and irreparable evil
- No more is done than necessary to avoid this evil
- The evil inflicted is proportionate to the evil avoided
- The offence is one that attracts the defence
Ministry of Justice (on the application of nicklinson) 2012
This is a Justificatory defence - it is a justified source between two evils.
It does not require a threat of personal injury or death but merely a choice between two evils.
It is different to duress.
Dudley and Stephens 1884
Medical cases;
F v West Berkshire Area Health Authority 1989 and Bourne 1939
Re A 2001 - it would appear that necessity may be used as a defence to murder but only in
exceptional and limited circumstances.
Elements of necessity;
- D commits the offence in order to avoid inevitable and irreparable evil
- No more is done than necessary to avoid this evil
- The evil inflicted is proportionate to the evil avoided
- The offence is one that attracts the defence
Ministry of Justice (on the application of nicklinson) 2012
