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Which Extent Does The Criminal Law Provides The General Defence of Necessity Towards Criminal Liabilities

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In Criminal law, offences are clearly defined. Some offences need proof of the criminal act and some need proof of a person who commits a criminal act. Under the criminal law act 1967 if an individual may have performed may an illegal act but he or she still not be found guilty under the legal violation because of a legally recognized justification for their action or they are legally not responsible for their action. For example the case of Neubauer & Fradella, 2010. In this case, Even though a person commits a crime but it shows how he or she still can out from the crime that he does, this is all because of the legal defences in the criminal law act 1967.

To begin a discussion, the aim of this essay is to understand about, to which extent does the criminal law provides the general defence of necessity towards criminal liabilities. The importance of having a criminal justice system is to provide guidelines to punish the wrongdoing person, so the social order in a jurisdiction or country is preserved. Crime can not only be explained with a single definition as there are many examples of activities and behaviours which can be considered as crimes such as murder, manslaughter, rape, robbery, and the list could go on. The guilty person who is charged under the criminal law act can be brought in front of the judge in court. The offender is also sometimes brought in front of a panel of jury for their verdict. If the offender is found to be guilty beyond a reasonable doubt, hence the guilty person will be sentenced by the judge based on the type of crime and the seriousness of the offence. Though, those who are convicted are not always found guilty by the courts. The defendants often use defences to prove themselves not guilty. In the context of this question, the defence of necessity which must be discussed first. What is Defence of Necessity? Defence of necessity is defined as a circumstance where a person commits an offence to avoid a greater evil to himself or another which would result in him from the situation in which he or the other person is involved. If the latter evil outweighs any evil act involved in the breach of law, it is arguable that the offender should have a defence of necessity. As said by Oliver Goldsmith, “in all human institutions, a smaller evil is allowed to procure a greater good.” The statement in a way supports the utilization of necessity as a defence in the English Legal System. The clear truth that the wrongdoer broke the regulation in mitigating circumstances can also be a situation for limiting or keeping off punishment, however, necessity is no longer usually a defence to avoid from being convicted. The term ‘Necessity’ has a special meaning in terms of the law. A particular action is no longer necessary in the experience there is actually no different choice. Several options are usually present, even though one of the alternate ways is to meet one’s own death. A necessity in criminal terms says that the evil of obeying the law is worse in specific circumstances than the evil of breaking it. In easier words, the law has to be broken to gain the greater good. The defence of necessity is controversial as truly the defence of necessity can not usually justify the breach of the law. Judges are suspicious of it due to the fact they are concerned that it may be subversive.

But if the validity of the defence is acknowledged, then it is only the letter of the law that is broken. If necessity is a legal justification, the regulation itself is no longer certainly broken. Also, it is stated that a positive purpose is no defence. The question which arises is, ‘how is necessity distinct from this?’. An individual who acts from necessity acts with a form of appropriate motive. At all, any good reason falling outside the doctrine of necessity is no longer a defence to a criminal charge, even though it might also be a foundation for limiting punishment.

The most important question is ‘to which extent does the English legal system well known for the common defence of necessity?’. There are two takes on the problem of the subject. The first view is that necessity is no longer considered a general defence, however, is known as the definition of a few particular offences. A number of statutes diligently provide for the defence. For instance, the Control of the pollution Act 1974, which permits a defence that the acts have been done “in an essential situation to keep away from risk to the public.” However, the parliament is not very imaginative. In addition, the general function of the statute in English law is silent in emergency situations, however, may also contain a large range of words that could provide the courts with an excuse for analyzing in the defence of necessity. For instance, negligence or reckless driving is an issue, necessity can still be taken into account. As an example, in a situation that places a man is charged with careless driving admits that he had to drive throughout the wrong side of the street with the motive of avoiding a collision. It looks even to be allowed that the reality that an individual driving in an emergency scenario is a factor to be considered in judging whether or not his act was besides due care. Any criminal injury is required that the harm be caused without lawful excuse, hence, in a situation where a rail accident and a passenger breaks into an unoccupied residence in order to telephone for help, it can also be contended that his damage to the door is no longer an offence due to the fact he has a lawful excuse. In some other example, if a similar passenger steals a bike in order to get help, his usage of the gas would not be held dishonest, therefore would not be considered theft. If a statute forbids something to be finished ‘wilfully’, the courts keep that the behaviour is illegal only if carried out ‘without lawful excuse’. An extra beneficiant line would be “without any reasonable justification or excuse”.

On the other hand, the alternate view is that necessity or minimal evil is a usual defence in the criminal law, similar to other defences like insanity, duress, and nonage. There is little common sense in saying that necessity can justify where the offence occurs to have the phrase “unlawfully” or similar expression in the definition but not where there are no words upon which the defence can be hung; for it should be drafting error if the phrase such as “unlawful” is included. Furthermore, to say that necessity can come in as a “lawful excuse” under statute presupposes that it is known through law as a lawful justification. If it is, there is no reason why its availability is dependent on the statutory phase.

As the unique views on necessity as the defence have been discussed, particular cases or a wide range of situations have to be analysed in order to recognize the perfect usage of necessity. A very well-known area in the use of necessity as a defence is in a murder case. Murder or manslaughter is really wrong. This is an area, in which the defence of necessity if allowed by using any chance, is given a very narrow scope. In layman’s perception necessity means killing another individual in self-defence. In criminal concept, it contradicts. As private defence overlaps with necessity, as the two are not the same. Unlike necessity, private defence involves no balancing of values. Not only can a person kill by a way of self-defence, but he can kill any number of people to defend himself alone. On the other hand, the private defence only works against voluntary or involuntary aggressors. Having uncommon exceptions, the aggressors are wrongdoers, while the person against whom the action is taken by necessity may not be aggressors or wrongdoers.

A well-known case in this area of necessity defence for killing is the case of (R v Dudley and Stephens). Dudley and Stephens are two sailors on a yacht and the defendant in the case is a cabin boy from the same yacht. The crew of the yacht have been forged away in a storm and had been compelled to get into an open boat, which no water and little provisions. Upon the twentieth day, having nothing to eat for a few days, and being nearly one thousand miles from land, the two sailors Dudley and Stephens agreed that the cabin boy must be killed with a knife in order that they might feed upon his body; and one of them carried out the plan. On the 4th day once they had been rescued via a vessel, in the lowest state of prostration. The two sailors have been charged with murder, however, the jury refused to take responsibility of convicting in such tragic circumstances. They observed a unique verdict in which they declared that “there was no greater necessity for killing the boy than any of the other three; however whether, upon the entire matter, the prisoners have been and are responsible of murder, the jury are ignorant and refer to court.” The conflict used to be viewed with the aid of the divisional Court of 5 judges, who held that the ac was murder. But, their sentence of death for murder used to be commuted through the Crown to one of six months’ imprisonment. Although (R v Dudley and Stephens) involved the corresponding need of necessity and right to life, the facts have been unique. It used to be a case of numerous people concerned in a common disaster, in which each and every single individual involved has been like to die if no crucial steps were taken.

Although the victim was alive however his life expectancy used to be relatively lower than the others. These assisting facts suggest that the defence of necessity would possibly have been accepted without imperilling the general supremacy of the right to life.

In every other circumstance, where the defendant has also committed manslaughter, the chance of the defence of necessity being accepted is higher. As an example, in a scenario where an individual is roped to a climber who has fallen, and neither of them can rectify the situation, it can also be very wonderful on the part of the individual who has been roped to, to cut the rope. The question which may also occur in such a scenario is, “but is it wrong?”. It is socially desirable that, at least, one life needs to be saved. Another situation of similar problem would be, the engine of a plane dying on the person flying it. It would no longer be wrong if the pilot chooses to land on a road where it would injure or kill a few people rather of crashing on a crowded soccer stadium. The pilot had chosen the lesser evil to stop the larger evil. In this situation, the defence of necessity can be used.

The subsequent key place in the defence of necessity is a medical necessity. Without expressly acknowledging it, the courts appear to have acknowledged a unique defence to murder via doctors. Although a medical doctor is aware of that treatment will accelerate the death of his patient significantly, he is no longer guilty of murder. The reason of the doctor is to provide what, in the situation as he is aware them, is the perfect treatment to relieve pain. An important case in the area of medical necessity is the case of (RE A), the Siamese twins, conjoined twin girls have been joined at the pelvis with each having their own brains, hearts, lungs and other necessary organs and own limbs. The medical proof confirmed that the more advantageous twin sustained the life of the weaker twin through circulating oxygenated blood thru a frequent artery. The medical proof also showed that the weaker twin’s coronary heart and lungs had been too poor to oxygenate and pump blood through her own body. If the twins had not been separated the stronger twin’s heart would have sooner or later failed and both of them would have died within a few months. The doctors argued that separating the twins would enable the stronger twin to live on and ultimately stay a worthwhile life, but stated that the weaker twin would die within minutes of the separation. The surgeons did no longer prefer to kill the weaker twin; however, knew her death was an inevitable side-effect of saving the stronger twin.

In addition, the case of (Bourne,1939) is another case involved in the medical defence of necessity. The defendant, in this case, is a surgeon, who carried out an abortion on a 14-year-old girl who had become pregnant as an end result of a brutal rape. He used to be prosecuted for unlawfully procuring a miscarriage. Macnaghten, summing up to the jury, stated they acquit if they believed that the doctor had acted in right belief for the reason only of keeping the life of the girl. The doctor was acquitted.

Furthermore, the area regarding the defence of necessity for driving offences. The criminal law makes a certain provision for emergencies in driving. Fireman, the police and ambulance are expressly exempted from speed limits, if observance “would be probably to avert the use of the vehicle for the reason for which it is being used on that occasion.” The issue is how the court will permit drivers, in general, to disobey traffic rules under the doctrine of necessity. There is plenty of indication that they will. In the case of (Buckoke v Greater London Council), Lord Denning said, “a driver of a fire engine with ladders approaches the traffic lights. He sees 200 yards down the road a blazing residence with a man at an upstairs window in severe peril. The road is clear in all directions. At that moment the lights turn red. Is the driver to wait for 60 seconds or more, for the lights to turn green? If the driver waits for that time, the man’s life will be lost.” Lord Denning accepted the opinion of each of the information that the driver at that time would commit an offence against traffic rules if he crossed the red light. But the risk to the fictional man at the upstairs window looks no much less than the chance to different road users.

Besides this, the part of criminal law which covers the defence of necessity at some stage in starvation. According to the institutional writers, the poor, or even those who are starving, are no longer allowed to take the law into their very own hands. The law does no longer recognize a necessity to eat. Although one may also steal meals in certain circumstances, such as where he is lost in the woods and discovers a hut with supplies since he would be capable to show that he had no reasonable choice except to steal food. A face-saving reason formerly superior for the rule was that enough provisions used to be made for the poor in the united states by charity and state aid. The motive has attained greater fact in modern-day times, even though for one reason or another people might also still be utterly destitute. If anyone steals as the only way to relieve hunger he will be convicted, however, will certainly receive a discharge. It was once no doubt with this position in thought that Edmund-Davies L.J stated on one occasion that even though necessity “may in certain cases afford a defence in a pressing situation of imminent peril,” it is no longer a defence to murder or theft. Both of the exceptions are too intentionally stated. There can be no reasonable doubt that necessity would be a defence where hunger arises in an extraordinary situation from physical and not economic causes, as where a group of miners are trapped underground and have to eat the rations of the comrades who have escaped or are dead. In any case, such behaviour would not be entitled to assume the consent of those who owned the food.

In the context of using necessity as a defence, there are also unique cases. For instance, shooting down hijacked aircraft. As a consequence of the destruction of the world trade centre in New York through a hijacked aircraft, it now seems to be known that it would be lawful to shoot own a plane, killing all the innocent passengers and crew if this were the only way to stop a much larger impending disaster. Government policy is to allow the shooting down of a civilian plane in such situations and that the basis for such action would be by using the application of a necessity principle, “in the final resort, it may be necessary to shoot down the civilian aircraft. Mod officials assured us that they had properly examined the legal elements of any such decision. We have satisfied ourselves with lawyers that there is a proper basis for doing this”. Even if the defence of duress can’t be a defence to murder, it appears pretty clear that necessity can. The problem of intentional killing in order to save lives also arose in the most tragic situation with the shooting of Jean Charles de Menezes at the Stockwell tube Station on 22nd July 2005. The police officials had shot the head dead, mistakenly believing that he used to be a suicide bomber. Immediate lethal force was once used to take him down as a suicide bomber is able to detonate a bomb with a single body movement. There was once no prosecution for murder or manslaughter brought against the officers. Even if they had been prosecuted, the defence of necessity would have been used.

In a nutshell, the context of this question is to discuss to which extent does the criminal law provides a general defence of necessity and as a result, it has been discussed with previous case examples and the take on necessity in the English legal system. Finally, the requirement of necessity in fundamental in the English criminal system even though the court can provide an absolute discharge in any applicable case. An absolute discharge is only for a large extent, and the court can’t provide a discharge where the conviction is of murder. The courtroom has discretion whether or not to provide a discharge or not, and there might also be no certainty that it will do this. Some judges are powerfully influenced by using the fact that, in their view, the law has been broken. And the possibility of being punished may also be a disincentive to act in a way that is socially desirable.

To conclude, the principle of defence of necessity is to provide defendants, who break the words of the law and no longer surpass the law itself, a chance to show themselves not guilty and offence was only carried out to prevent greater damage.


  1. Allen M.J and Cooper S, Cases and Materials on Criminal Law (Sweet & Maxwell 2013)
  2. Baker D.J, Textbook of Criminal Law (Sweet & Maxwell 2012)
  3. Ormerod D, Smith and Hogan’s Criminal Law (Oxford University Press 2011)
  4. Padifield N, Criminal Law (Oxford University Press 2014)

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