Topic 15 – Necessity 20.08.09
- This negates the element of lawfulness.
- The requirements for necessity are extremely similar to the requirements for Private
defence.
- Very important questions: (1) How to distinguish between Private defence and
necessity and (2) What are the differences
Definition (Know verbatim)
X acts in necessity if he avoids a threat of harm from a human or non-human
source by contravening a criminal norm or by causing harm to another . X’s
conduct is not unlawful provided the interest which he protects is more
valuable than the interest which he violates.
- X faces some kind of dangerous situation.
- This can come from a human or a non-human source.
- Eg 1, X holds his gun to Y’s head and tells Y to rape V. If Y rape’s V then he
does it in necessity.
- Eg 2, X is walking down the street. A pitbull starts chasing him and wants to bite
him. X shoots the animal. X can use necessity as a defence.
- Eg 3, X invites Y for lunch. A fire breaks out and Y jumps through the window
and breaks the glass. X is upset about the broken window and Y is then charged with
malicious damaged to property. Y can then rely on necessity as a defence.
Differences between Private defence and Necessity
- Private defence: The attack must be unlawful and it must come from a human
source.
- Necessity: The attack can come from a human or non-human source.
- PD: X has a choice he can avoid being harmed if he causes harm to someone else.
- Necessity: X can either (1) Contravene a criminal norm (break the law), or (2) He
can inflict harm on someone else
- The law allows X to avoid a dangerous situation by causing harm to someone
provided that the harm that X causes is less than the harm X would have suffered.
- This is always a Vis Compulsiva – X always has a choice.
- Rationale:
- The law allows this defence because here X is choosing the lesser evil.
- He chooses to do less harm that he would have suffered.
Requirements for Necessity (6)
Like PD, necessity has two legs:
(A) Emergency (from a human, animal or natural phenomenon)
(B) Response (X’s response)
, (A) Emergency
(1) Commenced / Imminent
(2) Against legal interest
(3) no fault
(B) Response
(4) Necessary
(5) Reasonable
(6) No legal obligation
(1) Commencement/ Imminent
- The rule against anticipatory necessity is exactly the same as for Private
Defence (Plz check notes)
- The attack must have started or is about to start.
- You cannot take pre-emptive action.
- The rule against belated necessity: If the emergency is over you cannot act in
necessity.
- You have to stop with your response and soon as the emergency is over.
- The same as with PD.
(2) Legal Interest
- (similar to PD)
- Physical Interest (life and limb)
- Proprietary Interest (Corporeal and incorporeal)
- Personality Interest (privacy, dignity and freedom)
- And all other protected interests.
- Exception: Economic Interests
- If someone threatens your economic interests you cannot rely on necessity as a
Justification.
(3) No fault
- X must not have created the emergency him/herself.
- General rule: If X has created the situation of necessity then he cannot rely on
necessity as a defence.
- The accused cannot benefit from his own wrongdoing.
- Exception:
- If X does something wring and this creates an emergency for a innocent 3rd party
then X can break the law to save the innocent 3rd party.
- This negates the element of lawfulness.
- The requirements for necessity are extremely similar to the requirements for Private
defence.
- Very important questions: (1) How to distinguish between Private defence and
necessity and (2) What are the differences
Definition (Know verbatim)
X acts in necessity if he avoids a threat of harm from a human or non-human
source by contravening a criminal norm or by causing harm to another . X’s
conduct is not unlawful provided the interest which he protects is more
valuable than the interest which he violates.
- X faces some kind of dangerous situation.
- This can come from a human or a non-human source.
- Eg 1, X holds his gun to Y’s head and tells Y to rape V. If Y rape’s V then he
does it in necessity.
- Eg 2, X is walking down the street. A pitbull starts chasing him and wants to bite
him. X shoots the animal. X can use necessity as a defence.
- Eg 3, X invites Y for lunch. A fire breaks out and Y jumps through the window
and breaks the glass. X is upset about the broken window and Y is then charged with
malicious damaged to property. Y can then rely on necessity as a defence.
Differences between Private defence and Necessity
- Private defence: The attack must be unlawful and it must come from a human
source.
- Necessity: The attack can come from a human or non-human source.
- PD: X has a choice he can avoid being harmed if he causes harm to someone else.
- Necessity: X can either (1) Contravene a criminal norm (break the law), or (2) He
can inflict harm on someone else
- The law allows X to avoid a dangerous situation by causing harm to someone
provided that the harm that X causes is less than the harm X would have suffered.
- This is always a Vis Compulsiva – X always has a choice.
- Rationale:
- The law allows this defence because here X is choosing the lesser evil.
- He chooses to do less harm that he would have suffered.
Requirements for Necessity (6)
Like PD, necessity has two legs:
(A) Emergency (from a human, animal or natural phenomenon)
(B) Response (X’s response)
, (A) Emergency
(1) Commenced / Imminent
(2) Against legal interest
(3) no fault
(B) Response
(4) Necessary
(5) Reasonable
(6) No legal obligation
(1) Commencement/ Imminent
- The rule against anticipatory necessity is exactly the same as for Private
Defence (Plz check notes)
- The attack must have started or is about to start.
- You cannot take pre-emptive action.
- The rule against belated necessity: If the emergency is over you cannot act in
necessity.
- You have to stop with your response and soon as the emergency is over.
- The same as with PD.
(2) Legal Interest
- (similar to PD)
- Physical Interest (life and limb)
- Proprietary Interest (Corporeal and incorporeal)
- Personality Interest (privacy, dignity and freedom)
- And all other protected interests.
- Exception: Economic Interests
- If someone threatens your economic interests you cannot rely on necessity as a
Justification.
(3) No fault
- X must not have created the emergency him/herself.
- General rule: If X has created the situation of necessity then he cannot rely on
necessity as a defence.
- The accused cannot benefit from his own wrongdoing.
- Exception:
- If X does something wring and this creates an emergency for a innocent 3rd party
then X can break the law to save the innocent 3rd party.
