Chapter 11: General defences - Necessity

Question 1

What are the 3 overview points to necessity?

Answer 1

1. Justification denfece - negates unlawful act (AR)
2. Buren of proof - Prosecution to disproof beyond reasonable doubt

Question 2

What is an important thing to note where necessity does not apply?

Answer 2

Necessity is never a defence for murder

Question 3

What is Necessity?

Answer 3

Nature of defence of necessity is that D broke the law to prevent a greater evil

Similar with self-defence (lesser of two evils)

Question 4

What are the 4 different case/scenario types?

Answer 4

1. Necessity in relation to murder
2. Offences Against the Persons Act 1861
3. Criminal damage offence
4. Road traffic offences

Just study for murder

Question 5

What are the 2 different scenarios for necessity in relation to murder, and its respective cases?

Answer 5

Survival necessity

• Dudley and Stevens [1884]

Medical necessity

• Re A (Conjoined Twins) [2001]

Question 6

Dudley v Stevens [1884]

Survival necessity

Answer 6

Facts

1. Defendants and cabin boy were cast adrift in a boat following a shipwreck
2. Ds agreed that cabin boy was already weak, and looked like he was likely to die soon
3. Ds decided to kill and eat him for as long as they could
4. In hopes that they would survive longer to be rescued
5. Few days later rescued
6. Charged for murder

Held

1. Judges of the Queen’s Bench Division were of the opinion that killing the cabin boy was still guilty of murder
2. And obvious necessity was no defence
3. Lord Coleridge CJ - “Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In [this present case] the weakest, the youngest, the most unresisting life was chosen. Was it more necessary to kill him than one of the grown men? The answer be, No.”

Takeaway

• No one is to decide who should be killed in any dire circumstance
• As the final decision would be to only benefit the individual themselves
• Whether it is survival or not - irrelevant

Question 7

Re A (Conjoined Twins) [2001]

Medical necessity

Answer 7

Issue

• COA held that in special circumstances, medical necessity is a defence in the killing of an innocent victim

Facts

1. Two conjoined twins had to be separated or both would die
2. Only one would survive the operation
3. Medical evidence showed that B was the weaker twin
4. Thus, B had to be sacrificed to save A
5. Question was whether the doctor had intention to kill and whether the surgeon had a defence

Held

1. The surgeon had the intention to kill that is the MR for murder
2. The surgeon had the defence of medical necessity

Takeaway

• Because one twin was weaker, there was medical necessity to keep the other alive

Question 8

What are the 2 cases for the Offences Against the Persons Act 1861 of necessity?

Answer 8

R v Bourne [1938]

Leigh v Gladstone [1909]

Question 9

R v Bourne [1938]

OAPA 1861

Answer 9

Facts

1. A gynaecologist (D) performed an abortion on a young girl who had been raped
2. He had the opinion that she could die if she gave birth

Held

1. D was not found guilty of “unlawfully procuring a miscarriage” for the purposes of Section 58 OAPA 1861
2. On grounds that he acted in good faith

Question 10

Leigh v Gladstone [1909]

OAPA 1861

Answer 10

Held

• Justified/lawful
• Prison officials may forcibly (lawful battery) feed prisoners in order to preserve their health and their lives

Question 11

What is there to note about criminal damage offence of necessity?

What is 1 case for this?

Answer 11

Necessity may be a defence in certain situations (Mouse’s Case)

Case

• Mouse’s Case

Question 12

Mouse’s Case

Criminal damage offences

Answer 12

Facts

• Throwing goods from a sinking ship

Held

• Justified necessity

Question 13

What is the case for Road Traffic offences for necessity?

Answer 13

Buckoke v GLC [1971]

Question 14

Buckoke v GLC [1971]

Road traffic offences

Answer 14

Note

• Lord Denning in obiter said that if the road is clear in all directions and the driver of a fire engine goes through a red traffic light to save a man’s life from a burning building
• He may have defence of necessity

Note (my opinion)

• LDs obiter was wrong, as public officers should have the right to cut through traffic (justified acts)
• So there would be no need to raise defence of necessity to begin with?