Defences: Necessity

• Here the D is not claiming they are innocent - they accept they did the crime, but put forward a "defence" as a reason why they should escape punishment.

  Can be separated into two types of defences:

  • Mental Capacity Defences
  • General Defences
• Mental Capacity Defences:

  • The defendant did not have the mental capacity to fulfil the mens rea of the offence.
  • Insanity
  • Automatism
  • Intoxication
• General Defences:

  • The circumstances of the crime are such that it would not be right, just or fair to punish the defendant for their actions.
  • Self-defence
  • Necessity
  • Consent
  • Duress
• Necessity:

  • The defence of necessity involves a claim of pure justification on the Defendants part.
  • D's crime is justified because they were put in a situation where they had to choose between the lesser of two evils to avoid the greater harm.
• R v Dudley & Stevens (1884):

  • D found guilty.
  • Defence of necessity was rejected. However, they were spared the death sentence and only served 6 months in prison.
• This case suggested that the defence of necessity was not allowed as a defence in criminal law.

  But, have been some civil law cases involving doctors where defence has been allowed:

  • Re F 1990
  • Re A 2000
• Re F 1990:

  • A female patient in metal hospital aged 36 had the mental capacity of a 4 year old.
  • She started a sexual relationship with another patient,
  • Her family sought a declaration to allow her to be sterilised without her consent so she did not get pregnant.
  • The House of Lords granted the order, stating that it was not only lawful for doctors to operate here, even without her consent, but that it was their "common duty" to do so.
• Re A 2000:

  • Conjoined twins Mary and Jodie were going to die unless doctors operated o separate them. Parents refused to consent to operation as it was certain Mary would die, although Jodie had good chance of survival.
  • Doctors sought to operate without the parents consent.
  • The Court of Appeal granted the order allowing operation, stating that the doctors would be protected from a murder charge using the defence of necessity.
• Necessity Requirements:

  1. The Act was done in order to avoid circumstances that were otherwise unavoidable.
  2. The circumstances avoided would have inflicted inevitable and irreparable evil.
  3. No more was done that was reasonably necessary.
  4. The evil inflicted was no disproportionate to the evil avoided.
• Question of necessity has taken new form recently in cases involving prosecutions for cannabis possessions by those using it for medicinal purposes.

  • R v Quayle 2005
  • R v Altham 2006
• R v Quayle 2005:

  • 5 joint appeals regarding convictions for possession, production and importation of cannabis. D's used it to treat symptoms of HIV, MS and severe back pain.
  • Outcome: Convictions upheld. No defence of necessity.
• R v Altham 2006:

  • D used cannabis for chronic pain after an accident. After prosecution her trued to appeal stating the decision in his case - following Quayle - was against Article 3 of the Human Rights Act (inhumane and degrading treatment).
  • Outcome: This was rejected and his conviction upheld.