Necessity Handout

This is a very short handout with all the basic details for the defence of necessity.

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This involves circumstances that force a person to act in order to prevent a worse evil from occurring.
It has similarities with the defence of duress of circumstances and for that reason the courts have been
reluctant to recognise it as a defence in its own right.
Dudley and Stephens (1884): D's were shipwrecked and eat the cabin boy due to not eating for 9 days.
Once they entered the UK they were convicted of murder and their plea of necessity was rejected.
It is recognised in civil law:
o Re F (Mental Patient: Sterilisation) (1990): A health authority applied to get a girl with a severe
mental handicap sterilised as she would not be able to cope with pregnancy. The HoL's granted the
application on the basis of necessity.
o Re A (Conjoined Twins) (2000): Doctors applied to separate two conjoined twins, but on the
basis that the weaker one would be killed by the operation. Brooke LJ stated that the defence of
necessity would be available to them for the death of the weaker twin and therefore the
declaration was approved.
In this case the defence of necessity was set out in four principles:
The act is done to avoid a consequence that would not otherwise be avoided.
These consequences, were they to happen, would have been seen as evil.
No more was done than was necessary.
The evil inflicted by it was not disproportionate to the evil avoided.
These above cases suggest that necessity, unlike duress, are available to murder.
Shayler (2001) was when a MI5 official disclosed confidential information and therefore breached the
Official Secrets Act (1989). The CoA and HoL's did not allow his defence of necessity and the CoA stated
that the defence of necessity and duress of circumstances were in effect the same defence.
× It could be used to simply excuse criminal behaviour and therefore there would be no end to its use.
× It can be argued that it appears absurd that in some situations it is "necessary" to kill an individual. This goes
against many policy issues.
× The defence of duress of circumstances is extremely similar to that of the defence of necessity. This means
that it is clear that the need of the defence of necessity is no more.


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