In
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, the defence of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the
defence of necessity
In tort common law, the defense of necessity gives the state or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, tr ...
has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person (which would fall under either duress or self-defence) and that the accused was in genuine risk of immediate harm or danger.
For the most part crimes that could be justified as necessary are minor in nature, such as driving over the speed limit to reach medical care, or damaging property to escape a fire. In almost all cases where a serious crime has taken place, necessity is unlikely to be a successful defence as courts have mostly taken the view that directly harming another person could not be justified even by extreme circumstances unless it directly prevented immediate serious harm or death.
Even if a person were already likely to die, and their death would allow others to survive, killing them is not necessary until the point where harm is imminently likely to occur to the others and if that harm is not immediate, then necessity cannot apply. As such the circumstances where necessity could apply to a serious crime are extremely narrow, involving two or more people in an immediately life-threatening situation where only one could survive. Even in this situation, as the law does allow for a person not to take actions that would save another person if to do so would put their own life at risk, it is seldom strictly necessary for one person to kill another, one allowing the other to die in the course of the situation, then saving themselves.
The
Crown Prosecution Service
The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.
The main responsibilities of the CPS are to provide legal adv ...
has historically chosen to exercise its discretion not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances, and as such where necessity is a strong defence.
History
This defence was used in the early
trial
In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or d ...
of ''
Regina v. Dudley & Stephens'' (1884)
14 QBD 273 DC, where four
shipwreck
A shipwreck is the wreckage of a ship that is located either beached on land or sunken to the bottom of a body of water. Shipwrecking may be intentional or unintentional. Angela Croome reported in January 1999 that there were approximately ...
ed
sailor
A sailor, seaman, mariner, or seafarer is a person who works aboard a watercraft as part of its crew, and may work in any one of a number of different fields that are related to the operation and maintenance of a ship.
The profession of the s ...
s were cast adrift in a small boat without provisions. To save themselves, the three strongest decided to
eat the fourth, the 17-year-old
cabin boy
''Cabin Boy'' is a 1994 American fantasy comedy film, directed by Adam Resnick and co-produced by Tim Burton, which starred comedian Chris Elliott. Elliott co-wrote the film with Resnick. Both Elliott and Resnick worked for '' Late Night with Dav ...
. The
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
ruled that
cannibalising the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of
natural causes
In many legal jurisdictions, the manner of death is a determination, typically made by the coroner, medical examiner, police, or similar officials, and recorded as a vital statistic. Within the United States and the United Kingdom, a distinct ...
, the sailors killed the boy intentionally and were
guilt
Guilt may refer to:
*Guilt (emotion), an emotion that occurs when a person feels that they have violated a moral standard
*Culpability, a legal term
*Guilt (law), a legal term
Music
*Guilt (album), ''Guilt'' (album), a 2009 album by Mims
*Guilt ( ...
y of
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
. There was some degree of necessity arising from the threat of
starvation
Starvation is a severe deficiency in caloric energy intake, below the level needed to maintain an organism's life. It is the most extreme form of malnutrition. In humans, prolonged starvation can cause permanent organ damage and eventually, dea ...
but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally.
Dudley and Stephens were convicted of murder and sentenced to be hanged; however, their sentence was later reduced to just six months in prison. The third man, Brooks, was not tried, as he had not participated in the murder. The principles from this case form the basis of the defence of necessity not being available for murder.
The principles
There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defences of necessity and
duress
Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. The general approach was laid down by
Lord Denning
Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
in ''Southwark London Borough Council v Williams'' (1971) 2 AER 175 that necessity should be denied as a general defence because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify
burglary
Burglary, also called breaking and entering and sometimes housebreaking, is the act of entering a building or other areas without permission, with the intention of committing a criminal offence. Usually that offence is theft, robbery or murder ...
to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. work or by seeking welfare support or charity), would deny the defence of necessity. The Canadian courts put the issue succinctly. In
Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that
:If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.
When considering necessity in ''R v Cole'' (1994) Crim. LR 582
Simon Brown LJ. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offence charged. This defendant robbed two building societies in order to repay debts. The form of defence was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.
Medical necessity
In ''Quayle and Others v R; Attorney General's Reference (No. 2 of 2004)'' (2005) EWCA Crim 1415 each defendant appealed convictions associated variously with the cultivation or possession of
cannabis
''Cannabis'' () is a genus of flowering plants in the family Cannabaceae. The number of species within the genus is disputed. Three species may be recognized: ''Cannabis sativa'', '' C. indica'', and '' C. ruderalis''. Alternatively ...
resin to be used for pain management. The choice facing the appellants was not severe pain without cannabis or absence of pain with cannabis, rather it was the absence of pain with adverse side effects without cannabis, and absence of pain with minimal side effects with cannabis. The difference was restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a ''
prima facie
''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' possibility of serious injury, let alone one such as would overwhelm the will of the defendant. There was no evidence from an objective standpoint that the appellants were acting reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the appellants to control pain by conventional and legal means. To admit the medical use of cannabis on the ground of necessity would defeat the legislative purpose underpinning the
Misuse of Drugs Act 1971
The Misuse of Drugs Act 1971 is an Act of the Parliament of the United Kingdom. It represents action in line with treaty commitments under the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nation ...
. Further, for the defence of necessity to succeed, the threat of injury must be immediate and imminent and come from an extraneous source. The parties were responding to continuous pain over a period of time and, in any event, pain is too subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to resist. The parties then argued that the law breached Article 8
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
by interfering with the right of privacy. Interference with the right of respect for private life is permissible under Article 8(2) if "in accordance with the law and ...
necessary in a democratic society __NOTOC__
"Necessary in a democratic society" is a test found in Articles 8–11 of the European Convention on Human Rights, which provides that the state may impose restrictions of these rights only if such restrictions are "necessary in a democra ...
... for the prevention of disorder or crime, for the protection of health or
morals
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
, or the protection of the rights and freedoms of others". Within the limits indicated in ''Taylor (Joseph) v Lancashire County Council'' (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, but their conclusion was that this was a policy matter more properly within the remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall within the protection of Article 8 ECHR.
In ''Altham'' (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road accident. He was charged with possession under s5(2)
Misuse of Drugs Act 1971
The Misuse of Drugs Act 1971 is an Act of the Parliament of the United Kingdom. It represents action in line with treaty commitments under the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nation ...
. The judge at first instance refused to leave the defence of
medical necessity
Medical necessity is a legal doctrine in the United States related to activities that may be justified as reasonable, necessary, and/or appropriate based on evidence-based clinical standards of care. In contrast, unnecessary health care lacks such ...
to the jury so the defendant changed his plea to guilty. The
Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
held that Article 3 ECHR (not to subject a person to
inhuman or degrading treatment
Cruel, inhuman or degrading treatment (CIDT) is treatment of persons which is contrary to human rights or dignity, but is not classified as torture. It is forbidden by the Universal Declaration of Human Rights, Article 3 of the European Convention ...
) does apply to the state. The defendant argued that using cannabis was the only way in which his symptoms could be alleviated and that he could not do so without committing a criminal offence. Thus, the state, by prosecuting him, subjected him to degrading treatment. The court said that the state, by refusing cannabis, neither did nor refrained from doing anything that would subject the defendant to degrading treatment. The state had done nothing to change the defendant's condition for better or worse, and there was nothing to require the court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. The court applied ''Quayle'' where the focus was on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose and effect of the legislative scheme.
In ''
Re A (Children) (Conjoined Twins: Surgical Separation)'' (2000) 4 AER 961 Jodie and Mary were
ischiopagus
Ischiopagi comes from the Greek word ''ischio-'' meaning hip (ilium) and ''-pagus'' meaning fixed or united. It is the medical term used for conjoined twins (Class V) who are united at the pelvis. The twins are classically joined with the vertebra ...
conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it was lawful to perform surgery to separate them when the separation would kill Mary. If the operation did not take place there was evidence that both would die within six months. The court proceeded on the basis that the potential charge would be murder in that, although the girls were physically joined, they were separate "lives in being". The court decided that the operation would be lawful.
Ward LJ
Sir Alan Hylton Ward (born 15 February 1938) is a former judge of the Court of Appeal of England and Wales.
Early life and education
Ward was born and raised in South Africa and practised as an Attorney of the Supreme Court (solicitor), occasiona ...
concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the
public policy
Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
of "sanctity of life" because of the "quasi self-defence", but
Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests because it denied her "inherent right to life." Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near-normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished
Dudley & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in ''Dudley''. The decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.
References
*Allen, Michael. (2005). ''Textbook on Criminal Law''. Oxford University Press, Oxford. .
*Elliott. (1989). "Necessity, Duress and Self-Defence". ''Criminal Law Review'' 611.
*Michalowski, Sabine. (2001). "Reversal of Fortune "Re A (Conjoined Twins)" and Beyond: Who Should Make Treatment Decisions on Behalf of Young Children?" ''Health Law Journal'' Vol.9. 149
*Ormerod, David. (2005). ''Smith and Hogan Criminal Law''. Eleventh edition. London: LexisNexis.
*Saini, P. (1999). "The Doctrine of Double Effect and the Law of Murder". ''Medico-Legal Journal'' Vol 67(3_. pp. 106–120.
*Sheldon, S & Wilkinson, S. (1997). "Conjoined Twins: The Legality and Ethics of Sacrifice". ''Medical Law Review'' Vol. 2. pp. 149–171.
{{DEFAULTSORT:Necessity In English Law
English criminal law
Medical law