Necessity Flashcards
What is necessity
Where D is able to choose between two courses of action, one of which involves breaking the criminal law and the other some harm to himself or another of greater magnitude, is he not ‘justified’ in choosing the lesser evil?
Mouse’s case
In charge of ferry that was threatened by a storm and he threw goods overboard to lighten to load and save the passengers. Here duress of circumstance would not be applicable as he couldn’t do this to save other property.
Case of mother taking a child with small pox through the street
Vantandillo: A mother took child suffering from small pox through the streets to get medical help. This was unlawful as exposed other people to the risk of the disease, but if she had to do so, then it would be lawful and that would be covered by duress of circumstance.
Denning considered emergency drivers
Buckoke v GLC: Denning considered hypothetical of driver of emergency vehicle going through a red light to save someone. Denning thought no defence of necessity. The man now covered by emergency regulations that have come into force since the case, If no regulations now be able to use duress of circumstance if he did what he did to save the life that had been threatened.
What cases often fall within necessity
Cases involving medical practitioners have tended to allow some intervention on the basis of necessity (often later reduced into a specific statutory provision): here the common law goes beyond duress of circumstance when dealing with a doctors duty to act in the best interests of his patient.
Borune
Doctor who terminated pregnancy of 14 year old rape victim was held to have acted lawfully in seeking to preserve from physical and mental consequences.
Gillick
proscribed contraceptives for a girl under 16 without parents’ consent would not be acting unlawfully. Since been covered by statute.
F v West Berkshire AHA
sterilisation operation was lawful in interests of mentally incapacitated woman.
Should any of the following also have a claim to a defence of necessity:
Cases where we question if a defence of necessity should have been allowed
- Using cannabis to treat pain (Quayl)
- Breaking the Official Secrets Act for the ‘greater good’ (Shayler)
- Child abduction to prevent (non-imminent) sexual violation (CS)
- Euthanasia (Nicklinson v Ministry of Justice)
Case of Perka
off loaded cargo to prevent boat, unlawful cargo of cannabis. Dickson says that we can’t have a general rule permitting people to break the law on the basis of expediency that would invite the courts to second guess the legislature all the time. But the duress of circumstance is a valid exception to that as it only applies to avoid direct and immediate peril, that is why we have.
Is necessity available to murder
No: Dudley v Stephens ‘Who is to be the judge of such 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’ (per Lord Coleridge)
Necessity and medical intervention
- Re A (Children): in this case doctors needed to decide whether to separate and the weaker twin would die, and they shared a set of organs. The separation of conjoined twins was not unlawful, even though ‘Mary’ would be killed, in circumstances where ‘Jodie’ was keeping Mary alive and without intervention both would die.
