Defence of necessity
Defence of necessity is a legal principle that allows a person to justify their actions if they were necessary to prevent a greater harm. It is based on the idea that in certain situations, breaking the law is justified in order to avoid a more serious consequence. This defence is typically used in cases where there was no reasonable alternative to the action taken.
6 Key excerpts on "Defence of necessity"
eBook - ePubThe Law of Duress and Necessity
Crime, Tort, Contract
- Nathan Tamblyn(Author)
- 2017(Publication Date)
- Routledge(Publisher)
...Although it uses the language of necessity, it is better understood as a separate defence, with a distinctive rationale, where necessity is only an ingredient rather than a motivating theme. So here it is called ‘best interests intervention’. Second, where the defendant acts upon the victim’s person or property to avoid something even worse. This is usually called lesser evil necessity. It has the potential to absorb all other necessity defences, which might also explain why some authors identify the tortious defence of private necessity as lesser evil necessity instead. 2 Nevertheless, I argue against the adoption of a defence of lesser evil necessity. A couple of further preliminary remarks are warranted. p.126 Necessity can be an ingredient in other defences, like self-defence, or it can be a defence in its own right. We are here concerned with necessity as a defence in its own right. There are, additionally, ‘backdoor’ defences of necessity. As Glazebrook says of criminal law, 3 crimes which proscribe behaviour done ‘dishonestly’, or ‘without reasonable excuse’, or ‘unlawfully’, might allow for arguments from necessity. (We might add, something similar could be said about torts which impose liability only for unreasonable behaviour.) So too, he says, it might be thought a principle of statutory interpretation that any proscription is not intended to apply where compliance would produce more harm than would contravention. 4 However, we are here concerned with necessity as a general defence, that is, a free-standing defence potentially available to all crimes and torts, however those crimes and torts are worded. The different types of necessity have not always been clearly demarcated. The case law is interwoven, and often the legal tests overlap. But the rationales are different...
eBook - ePub- Rodger Geary(Author)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
...sober person of reasonable firmness sharing the characteristics of the accused have responded to the perceived threat by acting as the accused had? If the answers to both these questions are in the affirmative, the Defence of necessity, always assuming it to be available, will be established. Duress Duress and Necessity The defences of duress and necessity are closely related. Indeed, the courts, in cases such as Conway and Martin (above), did not explicitly refer to necessity, but to ‘duress of circumstances’, a phrase also adopted in the Draft Criminal Code Bill 1989. Although both defences involve a situation where the defendant is faced by a choice of two evils, the major difference between them is the source of the evil. In necessity, the defendant is forced by circumstances to break the law, whereas in duress, the source of the evil a the threat made by another person. Definition The defence of duress consists of a plea that the defendant felt compelled to commit a crime because of an immediate threat of death or serious bodily harm by another person. Availability Because the courts want to encourage people to resist giving in to the pressures to commit crime, they have limited the availability of duress. In particular, the defence is not available in relation to murder or to an accomplice to murder (R v Howe (1987)), or in relation to attempted murder (R v Gotts (1991)). In addition, the defence is not available in relation to some forms of treason. Also, the defence of duress is not available to those who voluntarily join criminal groups and are then forced to commit the type of crime for which the group is renowned (R v Sharp (1987)). However, if the defendant is forced to commit an offence of a type which he could not have been expected to foresee when he joined the criminal organisation, he may still be able to rely on the defence (R v Shepard (1988)). A good illustration of the approach of the courts is provided by the case of R v Heath (1999)...
eBook - ePub- Claudia Carr, Maureen Johnson(Authors)
- 2013(Publication Date)
- Routledge(Publisher)
...If the defence could be used, this would imply that the law should hold the defendant’s life to be more important than the victim’s, and this cannot be the case. If threatened with death unless you commit a murder, the law says you must die! The same is true of attempted murder, as illustrated by the case of Gotts [1992] 2 WLR 284. The seventh point from Hasan concerns defendants who have voluntarily joined or become associated with criminals. Hasan makes it clear – building upon previous case law such as Heath [2000] Crim LR 109 and Harmer [2002] Crim LR 401 – that those who do associate with criminals should foresee they could be subject to pressure from such people to commit crimes, and therefore the defence of duress is unavailable to them. Necessity Traditionally, there has been no Defence of necessity in English criminal law. This dates back to the (in)famous case of Dudley & Stephens (1884–5) LR 14 QBD 273. This case has been used as precedent ever since to establish that necessity is not a relevant defence in English law. If necessity was a defence it could be argued, then the door would be opened to all sorts of people to plead that their need was greater than another’s and on balance, they should be excused punishment. This was part of the common law of England and Wales until the case of Re A [2001] 2 WLR 480. This means that the defence can only be used in a similar case, where the separation of conjoined twins will inevitably result in the death of one of the children. Although this is very restrictive, it allows necessity as a defence back into English law. Intoxication Intoxication it not a true defence under English law. It is a denial of the mens rea of the offence. A defendant may claim that he was so intoxicated – by drugs or alcohol – that he was simply unable to form the necessary mens rea required...
eBook - ePub- George Mousourakis(Author)
- 2018(Publication Date)
- Routledge(Publisher)
...The subjective aspect pertains to the assumption that question of whether the use of force was necessary should be answered in the light of the facts as the accused believed them to be. If the accused acted under an honest although mistaken belief that the use of force was necessary for his or another person’s protection, he is no more criminally responsible than if that force was in fact necessary for defence. The objective aspect pertains to the requirement that the degree of force used must be necessary and reasonable in view of the circumstances as the accused (mistakenly or not) believed them to be. If the harm caused by the accused was grossly disproportionate to the harm prevented the defence would fail. In both self-defence and provocation the situation giving rise to the conditions of the legal defence is brought about — most often culpably — by the victim. According to Wasserman, when self-defence is pleaded as a defence to a murder charge, the accused’s claim of justification has to do with the fact that he was forced by the victim to choose between lives. 20 Modern commentators agree that the aggressor’s culpability in endangering the accused’s or another person’s life renders the use of lethal force in self-defence legally justified. In Fletcher’s words Necessary defence is founded on the principle that it is right and proper to use force, even deadly force, in certain circumstances. The source of the right is a comparison of the competing interests of the aggressor and the defender, as modified by the important fact that the aggressor is the only party responsible for the fight. 21 As was indicated earlier, as a justification, self-defence is concerned primarily with the societal approval, or permissiveness, of the harm-causing conduct rather than with the blameworthiness of the actor as such...
eBook - ePubSelf-Defense, Necessity, and Punishment
A Philosophical Analysis
- Uwe Steinhoff(Author)
- 2019(Publication Date)
- Routledge(Publisher)
...However – and this is important – the proportionality and the necessity conditions cannot be separated as neatly here as in the case of self-defense. As we saw, in the latter case the necessity condition is very harsh and does not require an innocent defender to shoulder additional risks for the benefit of an aggressor; not even for the benefit of an innocent aggressor. Insofar as concessions are made to accord the innocent aggressor greater protection, these concessions come merely in the form of a duty to retreat if this is safely possible (a duty that does not exist with regard to a culpable aggressor), or they belong entirely to the proportionality condition anyway. As argued above, the harshness of the necessity condition of justified self-defense is explained by self-defense being exclusively directed against imminent or ongoing attacks. 12 Lesser evil or necessity justifications, in contrast, do not exclusively apply to imminent attacks, which means that far from necessity and proportionality being separate, they become intertwined in a balance of interests. An authoritative statement of a German legal commentary describes the guiding idea of this balance of interests as follows: If due to the choice of a milder means the additional risk of a failure of the [emergency] measure would be so great that the interest in avoiding this risk substantially outweighs the additional violation of a protected legal interest ensuing from the more effective course of action, then the choice of the more incisive means is precisely amenable to a justification by § 34 [Germany’s justifying emergency statute.] […] However, in case of a smaller difference in chances, which does not substantially outweigh a further impairment of the infringed interests, the severity of the more massive infringement cannot be legitimated by the principle of minimal solidarity [towards those whose interests are infringed] anymore...
eBook - ePubJustice, Liability, And Blame
Community Views And The Criminal Law
- Paul H. Robinson(Author)
- 2019(Publication Date)
- Routledge(Publisher)
...The latter cases are in truth instances of excuse, not justification, which are the subject of Chapter 5. Unlike some of the other areas that we have reviewed, there are a few studies in the psychological literature bearing on ordinary people’s perceptions of the legitimacy of justifications for acts that would otherwise generate liability. Darley and Zanna (1982), for instance, have demonstrated that even young children are capable of recognizing and granting validity to some of the most common classes of justifications recognized by the legal system. In the studies in this chapter, we measure the precise fit of community judgments with the patterns of justifications given validity within legal codes. Study 5: Use of Deadly Force in Self-Defense The law allows a person to use force to defend himself or herself, even deadly force on occasion. What otherwise would be murder (intentional killing) is fully exculpated as long as the conditions of self-defense are met. It is universally required that the use of force in self-defense be necessary. This notion of “necessity” means that ifless force (than that used) would have been adequate to one’s defense, then the force used is not necessary and therefore not justified. If a person can protect himself by using no force at all, then any use of force is unnecessary. Thus, codes typically oblige a person to retreat before using deadly force if he or she can do so in safety. The law limits one’s duty to retreat, however, by not requiring retreat from one’s home or workplace, on the theory that such retreat would expose the person to greater danger. A second, equally important condition of self-defense requires that the person’s use of force take account of the seriousness of the threat. That is, even if it is necessary to protect oneself, a person is not justified in using deadly force to defend against a kick in the shin...
