Necessity

Question 1

Necessity

Answer 1

Where circumstances force a person to act in order to prevent a worse evil from occurring.

• Courts are reluctant to distinguish it from Duress as the defences are so similar.
• Main difference is the Necessity CAN be a defence to Murder and Attempted Murder (RE A Cojoined Twins 2000).
• No General defence of Necessity

Leading Case (Dudley & Stephens):
-The charge was of Murder, Court said law on necessity is in line with the law on Duress.

Buckoke v Greater London Council 1971:
-Lord Denning said Necessity could not be used as a Defence for emergency services who broke traffic laws.

Question 2

Recognition of the Offence

Answer 2

Defence of Necessity has been recognised by Courts when making an order in some civil cases e.g. RE F

R v Shayler 2001:

• Said distinction between Duress and Necessity has been ignored by the courts and the law tended to treat Duress and Necessity as ‘one and the same’.
• CA held that the test for Duress of Circumstances/Necessity was:
• Act must be done to prevent an act of greater evil
• The evil must be directed towards he D or a person(s) that the D is responsible for
• The act must be reasonable and proportionate to the evil avoided.

Question 3

Necessity and Other Defences

Answer 3

There are some doubts as to whether Necessity exists in its own right, however, Necessity effectively forms the basis of other defences.

Self Defence:
-D is acting as he did because it was NECESSARY for his protection.

Special Statutory Defences:
-S.5(2)(B) Criminal Damage Act 1971: Necessity can be used when the criminal damage was caused because other property was at risk and in need of immediate protection, if what the D was reasonable in all the circumstances.