Necessity Flashcards
Define necessity
Necessity arises where the defendant Argues that he committed an offence but only because the circumstances forced him to
How does necessity contrast to duress
Necessity argues that the decision to break the Law is justified
- his action is said to be justified as it was the lesser of two evils
How is necessity similar to duress
The defence of necessity is also not abatable to an accused charged with murder.
what are the facts of R v Dudley and stevenson
- The two accused were convicted or murder and sentenced to death, although the sentence was later commuted to six months imprisonment.
- The defendants had been on a lifeboat for a number of weeks with two other and had killed one of the others and eaten his body.
- It was accepted that they had not done so, they would have all died.
- In their defence, it was argued that the deceased would have died anyway and that the defendants acted out of necessity.
what did the court hold in the case of f R v Dudley and stevens
The Court however held, that a decision such as had been made by the defendants would be one that would be made by the strongest at the expense of the weakest and that it was function of the law to protect the weak from the strong.
where does the defence of necessity arise ?
The defence arises where prevailing circumstances compel the accused to act in a particular way, and he elects to commit a criminal offence on the basis that it is the lesser of two evils.
what are the facts of the case R v Pommel {1995}?
- Accused charged with possession of a weapon (sub-machine gun)
- Defence – he had taken if from another man to prevent him avenging the death of his friend by killing the mans girlfriend and relatives
- Pommell intended to contact his brother, who worked at a nightclub and therefore seized weapons, to bring to the police
- He had taken the gun from his friend late at night and could not contact his brother until the following day
- His house was entered by the police at 8am on the strength of a warrant to search for counterfeit notes, which they found – they also found the gun
- In this case , the defence of necessity was avaible
what are the facts of the case R v Loughlan [1981]
- The accused escaped from prison with three other inmates
- When captured he argued that it had been necessary for him to escape as he had been misidentified as a police informant and therefore threatened with serious injury and death
- In fear of his life he joined a previously organised escape plan- he had not been originally party to the plan
- The trial judge refused to allow the defence of necessity to go before the jury - he appealed
what are the Necessary requirements for the application for the doctrine of necessity.
(i) the act is needed to avoid inevitable and irreparable evil
(ii) no more should be done that is reasonably necessary for the purpose to be achieved
(iii) the evil inflicted must not be disproportionate to the evil avoided
what are the facts of the case AG V X [1992] ?
- X was a 14 year old school girl who became pregnant as a result of rape
- She wanted to leave the country for an abortion but her parents were anxious that the man who raped her could be prosecuted
- For this reason they approached the Garda to explore whether DNA evidence could be collected from the aborted foetus
- She was prevented from leaving the country to protect the foetus in accordance with Art 40.3.3 of the Constitution
what are the facts of the case R v Bourne [1938] ?
- The surgeon performed an abortion on a 15 year old who was pregnant as a result of rape
- His defence was that if he had not performed the abortion the girl would have been a ‘physical and mental wreck’
- No person ought to be convicted under s58 of the Act of 1861 unless the jury are satisfied the act was not done in good faith for the purpose only of preserving the life of the mother’
- ‘Take a reasonable view of the words ‘for the preservation of the life of the mother’, I do not think that those words mean merely for the preservation of the life of the mother from instant death’
- ‘the law is not that the doctor must wait until the unfortunate woman is in peril of immediate death and then at the last moment snatch her from the jaws of death’
- Accused was found not guilty
outline the defence of necessity when it comes to medical cases
- If a doctor performs a medical intervention without the patients consent, he has technically assaulted him
- However, the doctor might claim that without the procedure the patient would have died – i.e. the defence of necessity
what does the ‘elements of immediate peril’ mean and what is the test for it ?
- ‘the elements of immediate peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of immanent peril’
- ‘thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed’
‘- the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?’
what limitation does the Australian case R v Loughlan [1981] VR 443 outline.
- The limitation that an individual must – if he is aware of it – take a lesser or non-criminal alternative is based on the justificatory nature of the defence
E.g.
An accused who chooses a particular criminal outcome when it could have been avoided or minimised cannot claim to have acted justifiably
what did the case pommel emphasise
Pommell emphasised that the accused had to act reasonably
