Defence of Necessity
Necessity:
Justificatory defence: it is a justified source between two evils – essentially asking what is the
lesser of two evils = what are the options and which is the least bad?
E.g. push someone out the way before they get hit by a car, but they fall on to the
ground
It differs from duress as duress excuses a D’s behaviour as a concession to human frailty,
whereas necessity justifies it
It does not require a threat of personal injury or death, but merely a choice between two evils.cf
the defence of duress of circumstances which requires a threat of death or serious injury to the
person
It may be a defence to murder
General Defence?
Courts have been reluctant to recognise a general defence of necessity on the basis that it might
be seen as going too far towards providing excuses for law-breaking
Class Discussion:
Would you and your friends kill and eat a stranger ( a fellow passenger) following a crash at sea
where you were without any food or water for about 2 weeks? The stranger was very weak and
unlikely to survive. You have the belief that you and your friends would die if you did not eat the
stranger and the stranger would probably have died before you.
Would you be able to rely on necessity if charged with murder?
(Dudley and Stephens 1884):
Necessity was not permitted as a defence
They did reduce their sentence though, which was 6 months with hard labour
It may be a defence to murder, but this happens very rarely
Medical cases:
More recently, necessity has been relied upon in medical cases.
F v West Berkshire Area Health Authority 1989 & Bourne 1939:
Mentally ill woman formed relationship
Necessity:
Justificatory defence: it is a justified source between two evils – essentially asking what is the
lesser of two evils = what are the options and which is the least bad?
E.g. push someone out the way before they get hit by a car, but they fall on to the
ground
It differs from duress as duress excuses a D’s behaviour as a concession to human frailty,
whereas necessity justifies it
It does not require a threat of personal injury or death, but merely a choice between two evils.cf
the defence of duress of circumstances which requires a threat of death or serious injury to the
person
It may be a defence to murder
General Defence?
Courts have been reluctant to recognise a general defence of necessity on the basis that it might
be seen as going too far towards providing excuses for law-breaking
Class Discussion:
Would you and your friends kill and eat a stranger ( a fellow passenger) following a crash at sea
where you were without any food or water for about 2 weeks? The stranger was very weak and
unlikely to survive. You have the belief that you and your friends would die if you did not eat the
stranger and the stranger would probably have died before you.
Would you be able to rely on necessity if charged with murder?
(Dudley and Stephens 1884):
Necessity was not permitted as a defence
They did reduce their sentence though, which was 6 months with hard labour
It may be a defence to murder, but this happens very rarely
Medical cases:
More recently, necessity has been relied upon in medical cases.
F v West Berkshire Area Health Authority 1989 & Bourne 1939:
Mentally ill woman formed relationship
