Necessity Flashcards
What defence is this similar to?
Similarities with the defence of duress of circumstances.
What are the courts reluctant to do?
Recognise necessity as a defence in its own right.
What case explains that the defence of necessity may be attempted where circumstances force a person to act in order to prevent a worse evil from occurring?
R v Dudley & Stephens (1884)
Has the defence been recognised by the courts when making an order in certain civil cases? If so give an example.
Re F: (Mental Patient: Sterilisation) [1990]
Other medical cases have also discussed the use of necessity as a defence to carrying out offences, even to a potential murder charge. Give examples.
Re A: (Conjoined Twins) [2001]
R v Shayler [2001]
Re F: (Mental Patient: Sterilisation) [1990]
Held: The declaration was granted. It would be lawful for the doctors to operate without her consent.
Re A (conjoined twins) [2001]
Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors.
R v Shayler [2001]
Held: Appeal dismissed. Whilst the defence of duress could be raised in offences under the Official Secrets Act, there was insufficient precision in Shayler’s claims. He could not identify the action that was going to create imminent threats to life, nor could he identify the potential victims or establish that he had responsibility for them.
As a result of Shayler what did Lord Woolf say regarding duress?
Lord Woolf, in R v Shayler, stated that the distinction between duress of circumstances and necessity has been ignored and blurred by the courts and some courts have classed them as being one in the same.
As a result of Shayler what did the COA make the test?
The act must be done only to prevent a greater evil;
The evil must be directed towards the defendant or a person or persons for whom they are responsible for; and
The act must be reasonable and proportionate to the evil avoided.
