Criminal law – week 19 – defences: necessity and public/private defence
Pre-recorded lecture 1: Necessity
Necessity relates to the choice between two evils – it can be an excuse or a justification – breach and
the harm balance
- Necessity has not been fully defined, its an enigma, uncertain and is unresolved
- Criminal law needs this defence
- No other defence available, clear liability would be inappropriate
- Existence denied (reluctance) yet deployed
- Defence courts wish to encourage
- Considered to apply to medical cases
- Other
Necessity applied
- Operates on the balance of evils – if D’s evil (offence) is less serious than the evil avoided by
committing it, then D entitled to the defence
- Problem? Defining necessity in greater detail – likely risk safety net utility sacrificed
- Conversely – if only test balance of evils – lead the defence to become impossibly wide?
Courts
- Pragmatic approach: resist definition and restriction but apply defence reluctantly and
always with the defence’s potential, intermediate dangers in mind
- London Borough of South ward v Williams 1971 – potential application of necessity and
dangers illustrated
o ‘if hunger were once allowed to be an excuse for stealing, it would open a door
through which all kinds of lawlessness and disorder would pass…if homelessness
were once admitted as a defence to trespass, no one’s house would be safe.
Necessity would open a door which no man could shut…the reason for such
circumstances is clear – necessity can very easily simply become a mask for anarchy’
Cases where necessity was applied
- Problems and judicial reluctance necessity applied number of exceptional cases
- Pipe v BPP 2012 – speeding case, necessity allowed on appeal
- Leigh v Gladstone 1909 – justify force feeding of prisoners
- Bourne 1939 – justify procurement of abortion to save mother – implicit surgeons choice
determined by necessity
- Gillick v West Norfork and Wisbeh A.H.A 1985
o Mothers of five girls challenged lawfulness of Department of Health advice to area
health authorities enabled Dr’s giving confidential
o HL – Dr faced a choice, giving confidential advice which was likely to lead to offence
on one hand and risk unwanted pregnancy with psychological suffering for young
women on the other
o Dr’s advice was guided by best interest of young women – no criminal intent arose,
and no offence was committed
o Necessity not explicitly recognised but applied
- F v West Berkshire Authority 1989
o V, 36-year-old patient in psychiatric hospital
, o Formed a sexual relationship
o Medical advice found be disastrous if V became pregnant
o However, problems ensuring the use of ordinary contraception
o V mother applied for court order for sterilisation (w/out V’s consent as V unable)
o Declaration sought that such an order be unlawful
o Declaration granted, appealed, and dismissed by both CA and HL
o Held, Doctors actions protected by necessity
R v Quayle (2006)
o Reluctance to grant necessity
o D had both legs amputated, argued that he needed to smoke cannabis to avoid pain
from medical condition
o Medical evidence – cannabis effective pain relief
o Conviction for possession, cultivation, production, and importation of cannabis
o Appealed based on necessity, and this was dismissed
Can necessity be a defence to murder?
Dudley and Stephens 1884 – cabin boy case
- Held necessity not a defence to murder
- D shipwrecked, after several days, decided to murder V (the cabin boy) and eat him
- Rescued 4 days later and charged with murder
- Jury, special verdict, findings of fact that Ds would have died if they had not eaten V and V
would have certainly died
- High court – guilty of murder – necessity not a defence
- D chose to kill V, recognising the defence would have led to divorce of law from morality
- Necessity not a defence to murder, attempted murder, or treason
- Restriction relaxed in medical cases Re A
Re A (conjoined twins) 2000
- J and M conjoined twins, separate vital organs, medical evidence established that J was
sustaining Ms life through common artery
- Left conjoined, both die
- If separated J had a potential for life but M would die
- Parents refused operation on religious ground
- Doctors applied for declaration that separation (killing M) would not be unlawful
- Declaration granted, appealed, Ca dismissed appeal
- LJ Brooke, basing decision on necessity, set out 3 requirements for the defence
o 1) act is needed to avoid inevitable and irrespirable evil
o 2) no more should be done than is reasonably necessary for the purpose to be
achieved
o 3) the evil inflicted must not be disproportionate to the evil avoided
Public/private defences (self-defence)
Scope, use of reasonable force
- 1) self defence
- 2) defence of another
Pre-recorded lecture 1: Necessity
Necessity relates to the choice between two evils – it can be an excuse or a justification – breach and
the harm balance
- Necessity has not been fully defined, its an enigma, uncertain and is unresolved
- Criminal law needs this defence
- No other defence available, clear liability would be inappropriate
- Existence denied (reluctance) yet deployed
- Defence courts wish to encourage
- Considered to apply to medical cases
- Other
Necessity applied
- Operates on the balance of evils – if D’s evil (offence) is less serious than the evil avoided by
committing it, then D entitled to the defence
- Problem? Defining necessity in greater detail – likely risk safety net utility sacrificed
- Conversely – if only test balance of evils – lead the defence to become impossibly wide?
Courts
- Pragmatic approach: resist definition and restriction but apply defence reluctantly and
always with the defence’s potential, intermediate dangers in mind
- London Borough of South ward v Williams 1971 – potential application of necessity and
dangers illustrated
o ‘if hunger were once allowed to be an excuse for stealing, it would open a door
through which all kinds of lawlessness and disorder would pass…if homelessness
were once admitted as a defence to trespass, no one’s house would be safe.
Necessity would open a door which no man could shut…the reason for such
circumstances is clear – necessity can very easily simply become a mask for anarchy’
Cases where necessity was applied
- Problems and judicial reluctance necessity applied number of exceptional cases
- Pipe v BPP 2012 – speeding case, necessity allowed on appeal
- Leigh v Gladstone 1909 – justify force feeding of prisoners
- Bourne 1939 – justify procurement of abortion to save mother – implicit surgeons choice
determined by necessity
- Gillick v West Norfork and Wisbeh A.H.A 1985
o Mothers of five girls challenged lawfulness of Department of Health advice to area
health authorities enabled Dr’s giving confidential
o HL – Dr faced a choice, giving confidential advice which was likely to lead to offence
on one hand and risk unwanted pregnancy with psychological suffering for young
women on the other
o Dr’s advice was guided by best interest of young women – no criminal intent arose,
and no offence was committed
o Necessity not explicitly recognised but applied
- F v West Berkshire Authority 1989
o V, 36-year-old patient in psychiatric hospital
, o Formed a sexual relationship
o Medical advice found be disastrous if V became pregnant
o However, problems ensuring the use of ordinary contraception
o V mother applied for court order for sterilisation (w/out V’s consent as V unable)
o Declaration sought that such an order be unlawful
o Declaration granted, appealed, and dismissed by both CA and HL
o Held, Doctors actions protected by necessity
R v Quayle (2006)
o Reluctance to grant necessity
o D had both legs amputated, argued that he needed to smoke cannabis to avoid pain
from medical condition
o Medical evidence – cannabis effective pain relief
o Conviction for possession, cultivation, production, and importation of cannabis
o Appealed based on necessity, and this was dismissed
Can necessity be a defence to murder?
Dudley and Stephens 1884 – cabin boy case
- Held necessity not a defence to murder
- D shipwrecked, after several days, decided to murder V (the cabin boy) and eat him
- Rescued 4 days later and charged with murder
- Jury, special verdict, findings of fact that Ds would have died if they had not eaten V and V
would have certainly died
- High court – guilty of murder – necessity not a defence
- D chose to kill V, recognising the defence would have led to divorce of law from morality
- Necessity not a defence to murder, attempted murder, or treason
- Restriction relaxed in medical cases Re A
Re A (conjoined twins) 2000
- J and M conjoined twins, separate vital organs, medical evidence established that J was
sustaining Ms life through common artery
- Left conjoined, both die
- If separated J had a potential for life but M would die
- Parents refused operation on religious ground
- Doctors applied for declaration that separation (killing M) would not be unlawful
- Declaration granted, appealed, Ca dismissed appeal
- LJ Brooke, basing decision on necessity, set out 3 requirements for the defence
o 1) act is needed to avoid inevitable and irrespirable evil
o 2) no more should be done than is reasonably necessary for the purpose to be
achieved
o 3) the evil inflicted must not be disproportionate to the evil avoided
Public/private defences (self-defence)
Scope, use of reasonable force
- 1) self defence
- 2) defence of another
