Defence of necessity

Understanding the Defence of Necessity in Criminal Law

Key Elements of the Defence of Necessity

• 1. That there was an imminent and serious threat or harm;
• 2. That their actions were necessary to prevent the harm;
• 3. That there were no reasonable legal alternatives available;
• 4. That the harm prevented was greater than the harm caused by their actions.

Distinction between Defence of Necessity and Duress

Duress occurs when a person is coerced, threatened, or forced to commit a crime under the pressure of another party. In this situation, the person believes that if they do not commit the crime, they will face harm or death at the hands of the coercing party. For duress to be a valid defence, there must be a direct and immediate threat, the person must have acted under fear of harm, and there should be no reasonable opportunity to escape or avoid the threat.

On the other hand, the defence of necessity is not based on coercion or threats from others. It arises when a person commits a crime to prevent a greater harm from occurring, even in the absence of external pressure. Whereas duress focuses on the actions of others, necessity is more concerned with the consequences of committing the crime versus not committing the crime. In short, while both duress and necessity are legal defences in criminal law, they differ in their requirements and underlying principles. Understanding these differences is crucial for defendants who wish to use one of these defences in their case.

Examining Defence of Necessity Cases

R v Dudley and Stephens: The Lifeboat Case

• Imminence of death: The defendants argued they would have died of starvation had they not killed Parker to survive;
• Moral justification: Dudley and Stephens contended that sacrificing Parker's life was morally justified to save the greater number;
• Rule of law: The judges in this case were tasked with determining if these actions could be legally excused under the defence of necessity.

R v Shayler: The Whistleblower Case

1. Exposure of illegal conduct: Shayler believed that the information he disclosed exposed serious misconduct within MI5;
2. Public interest defence: He argued that the disclosure was in the public interest and necessary to protect democratic values;
3. Cover-up of wrongdoings: Shayler claimed that he had tried to raise his concerns internally but was ignored or silenced.

Factors that Influenced the Outcome of Defence of Necessity Cases

• Proportionality: There should be a balance between the harm caused by the defendant's actions and the greater harm they sought to prevent;
• Immediacy: The threat or harm that the defendant seeks to avoid must be imminent and not speculative or remote;
• Legal alternatives: The defendant must establish that no reasonable alternatives were available to prevent the harm without breaking the law;
• Moral justification: The courts may consider whether the defendant's actions were morally justifiable in the circumstances.

Analysing Defence of Necessity Examples

Defence of Necessity Scenarios in Criminal Law

Medical Situations and Defence of Necessity

• Mercy killing or euthanasia: When a person, usually a close family member, takes the life of another person who is suffering from a severe and incurable medical condition, with the intent of ending their pain and suffering;
• Stealing medication: As previously mentioned, a person might break into a pharmacy to obtain medication for a critically ill loved one when no other legal alternatives are available;
• Assisted suicide: When a person helps another individual, usually suffering from a terminal illness, to end their life in order to alleviate their pain and maintain their dignity.

Environmental Protest Cases and Defence of Necessity

• Anti-nuclear protests: Demonstrators opposing the construction or operation of nuclear power plants, who have trespassed or caused damage to such facilities, may claim their actions were necessary to prevent a greater danger from nuclear accidents or radiation;
• Fracking protests: Activists who have disrupted fracking operations by trespassing or blockading sites could argue that their actions were necessary to protect the environment and public health from the potential risks associated with hydraulic fracturing;
• Climate change activism: Protesters who engage in acts of civil disobedience to highlight the urgency of climate change may invoke the defence of necessity, arguing that the immediate threat posed by climate change necessitates extraordinary measures to bring about change.

Assessing the Validity of Defence of Necessity Examples

Evaluating the validity of defence of necessity claims involves considering various factors, including the specific circumstances of each case, the jurisdiction in which the case is being heard, and the applicable legal principles. Some of the key factors that courts assess when determining whether a defence of necessity should succeed include:

1. Imminence of the threat: The harm that the defendant aims to prevent must be immediate or substantially certain to occur in the absence of their unlawful actions;
2. Proportionality: The harm caused by the defendant's actions must not be disproportionately greater than the harm they sought to prevent;
3. Reasonable alternative measures: The defendant must demonstrate that there were no lawful alternatives available to prevent the greater harm, and that they acted out of desperation;
4. Voluntariness: The defendant's actions must be taken voluntarily, and they must not have contributed to the creation of the necessity situation;
5. Legal principles: Courts will consider the implications of upholding a necessity defence on the broader legal system and potential consequences of setting such a precedent.

Defence of Necessity Exceptions: Limitations and Boundaries

Recognising Situations where Defence of Necessity Does Not Apply

1. When the defendant caused or contributed to the emergency: If the defendant's actions or negligence played a substantial role in creating the greater harm they sought to prevent, they cannot rely on the defence of necessity;
2. When the harm prevented does not outweigh the harm caused: If the defendant's actions result in a greater harm than the one they intended to prevent, the defence of necessity will be invalidated;
3. When the defendant had a reasonable alternative course of action: If the defendant had legal means of addressing the emergency without resorting to criminal conduct, the defence of necessity will not be applicable;
4. When the defendant's actions are considered inherently reprehensible: In cases where the action taken is deemed morally repugnant, such as murder or serious acts of violence, the defence of necessity is not available.

Defence of Necessity and the Greater Harm Principle

• Proportionality: The greater harm principle ensures that the defendant's actions are proportionate to the harm they sought to prevent. If the defendant's actions result in equal or greater harm than the harm they intended to prevent, the defence of necessity will not succeed;
• Imminence of harm: To satisfy the greater harm principle, the harm the defendant sought to prevent must be imminent, meaning that if their actions were not taken, the greater harm would have occurred without any significant delay;
• Lesser evil doctrine: The greater harm principle incorporates the lesser evil doctrine, which asserts that a defendant's actions are justifiable if they chose the lesser of two evils, even if their actions would normally be considered unlawful;
• Reasonable alternatives: The greater harm principle necessitates that the defendant must not have had any reasonable legal alternatives to prevent the greater harm. If such alternatives were available, the defence of necessity will not apply.

Defence of Necessity Denied: Examples and Rationale

Analysing examples where the defence of necessity has been denied can provide further insights into its boundaries and limitations. Here are a few notable cases where the defence was rejected and the rationale behind each decision:

1. United States v. Holmes (1841): In this case, the crewmembers of a sinking ship threw several passengers overboard to lighten the load and prevent the ship from sinking. While their actions may have saved the rest of the passengers, the court denied the defence of necessity, asserting that the crewmembers had no right to decide who lived and who died, and that their actions constituted manslaughter.
2. R v. Martin (1989): Martin, a farmer, set a trap in his home to deter burglars, and when a burglar was subsequently injured by the trap, Martin claimed that his actions were necessary to protect his property. However, the court determined that Martin's actions were not a proportionate response to the risk of burglary, and the defence of necessity was denied.
3. Heathrow Airport Climate Change Protest (2019): In this case, climate change activists attempted to use the defence of necessity after being arrested for trespassing on Heathrow Airport's runway. The activists claimed that their actions were necessary to draw attention to the dangers of climate change. However, the court rejected this defence, stating that the immediate harm caused by their actions exceeded the possible future harm that their protest aimed to prevent.

Defence of Necessity Imminent Threat Requirement

Importance of Imminence in Defence of Necessity

• Maintaining the moral and legal legitimacy of the defence: Imminence ensures that an accused person can only rely on the defence of necessity when the threat is genuinely immediate, thereby preventing abuse of the defence or its use for justifying otherwise unlawful conduct;
• Preserving the rule of law: Imminence helps to protect the legal system by limiting the circumstances in which an individual can commit a crime to prevent harm, maintaining the principle that no one is above the law;
• Balancing the interests of the individual and society: The requirement of imminence allows the courts to balance the competing interests of the defendant, who may have acted out of desperation, and society, which has an interest in maintaining order and upholding the law.

Timeframe and Perceived Danger in Imminent Threat Analysis

• The timeframe in which the danger is expected to manifest: The greater the time that elapses between the defendant's actions and the expected occurrence of the harm, the less likely it is that the threat will be considered imminent;
• The perceived danger: Courts will assess the defendant's perception of the threat at the time of their actions and whether their belief that the danger was imminent was reasonable given the circumstances;
• Evidence of the threat: The courts will examine any evidence that supports the defendant's claim of an imminent threat, such as expert testimony or objective data on the likelihood of harm;
• The severity of the potential harm: The more severe the potential harm, the more likely it is that a court will find the threat to be imminent, even if the harm is not certain to occur immediately.

Imminent vs. Remote Threats: Understanding the Difference

• Timeframe: Imminent threats typically involve a short or immediate timeframe, whereas remote threats may be more distant or uncertain;
• Certainty: Imminent threats involve a high degree of certainty that the harm will materialise, while remote threats are more speculative in nature;
• Preventability: Imminent threats are those that can be effectively prevented or mitigated by the defendant's actions, whereas remote threats may not be so easily averted;
• Severity: Imminent threats often involve more severe potential consequences, while remote threats may be less harmful or impactful.