Necessity Flashcards
What is necessity?
this is where circumstances force a person to act in order to prevent a worse evil from occuring
What defense has the defense of necessity have in common?
duress of circumstances
Although the defence has similarities with the duress of circumstances defence, what have the courts been reluctant to recognise?
necesiity as a defence in its own right
What is the leading case on necessity?
Dudley and Stephans 1884
What happened in the case of Dudley and Stephan 1884?
Ds were stranded at see and after 9 days without food or water they killed and ate the cabin boy. Convicted of murder. Their claim of necessity that they would have otherwise died was rejected. their sentence was however lowered to six months imprisonment
Ds were stranded at see and after 9 days without food or water they killed and ate the cabin boy. Convicted of murder. Their claim of necessity that they would have otherwise died was rejected. their sentence was however lowered to six months imprisonment
What case is this?
Dudley and Stephans 1884
How does Dudley and Stephans 1884 reflect that necesiity is in line with the law of duress?
as duress is equally not a defence for murder
In which case did Lord Denning state obiter that he thought the defence of necessity should be available to emergency service drivers if they broke traffic laws in an attempt to arrive at an emergency quickly.?
Buckoke v Greater London Council
What did Lord Denning state obiter in Buckoke v Greater London Council?
that he thought the defence of necessity should be available to emergency service drivers if they broke traffic laws in an attempt to arrive at an emergency quickly.
Nevertheless, while Lord Denning stated in Buckoke v Greater London Council that that he thought the defence of necessity should be available to emergency service drivers if they broke traffic laws in an attempt to arrive at an emergency quickly; what is the actual law?
that such a defendant could be prosecuted and would not have a defence of necessity
What has happened to road traffic laws for emergency service drivers?
it has now been changed to give them a special defence in the circumstances
What case is an example of where the defence of necesitty has been recognised by the courts when making an order in some civil cases?
Re F
What happened in the case of Re F?
A health authority, with the backing of the parents, applied to lawfully sterilise a girl who had a severe mental disability and was in a sexual relationship which would have been harmful for her to if pregnant. HOL granted application as it is the common duty of doctoirs on the grounds of necessity
A health authority, with the backing of the parents, applied to lawfully sterilise a girl who had a severe mental disability and was in a sexual relationship which would have been harmful for her to if pregnant. HOL granted application as it is the common duty of doctoirs on the grounds of necessity
What case is this?
Re F
What are the 2 cases where a doctor has sought a declaration that their medical advice is necessary?
- Re F
- Re A
What happened in the case of Re A?
doctors applied for a declaration in order to operate on conjoined twins where one would certainly die, but to leave them would result in 2 deaths. COA gave the declaration. Defence of necessity was available
What happened in the case of Shayler?
D was a former member of Mi5 and had disclosed confidential documents; he claimed necessity
Who stated that the defences of necessity and duress of circumstances are by in large the same?
Lord Woolfe
What have the COA held were the tests for duress of circumstances and necessity ?
- the act must be done only to prevent an act of greater evil
- the evil must be directed towards the defendant or a person or persons for whom he was responsible (not for necessity cases, e.g Re A)
- the act must be reasonable and proportionate to the evil avoided
What is the major difference between duress of circumstances and duress of threats?
duress of circumstancse cannot be used as a defence to murder, yet it was accepted in Re A that necessity is a defence for murder of the weaker twin
What are the 2 offences which necessity effectively forms?
self defence and special statutory defences
what is the necessity essence for self defence?
that the defendant is claiming that he had acted as he did because it was necessary for his protection
What is the necessity essence for special statutory defences?
that under the Criminal Damage Act, necessity is a defence to a charge of criminal damage where other property was at risk and in need of immediate protection in reasonable circumstances
What is the deffiniton of necessity?
circumstances which force a person to act in order to prevent a worse evil from occuring
What were the 4 tests for necessity?
- Act was done only to avoid consequences which could not otherwise be avoided
- Those consequences would have inflicted inevitable and irreparable harm
- No more was done than was necessary
- The evil inflicted was proportonate to the evil avoided
