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Lecture notes on necessity and self defence in criminal law
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necessity and self defence
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Necessity - Blackstones Criminal Practice: ‘It has long been unclear whether a general defence
of necessity exists in the English Criminal Law’
Very similar to duress of circumstance
When D is placed in a situation and both choices are bad, they have to choose one
Stuck between a rock and a hard place
E.g. if you are stuck in a flood and have to commit criminal damage to get out or get
swept away in flood
Duress has to have a threat of death or serious injury whereas necessity doesn’t
Necessity is a justified choice to commit a crime
Dudley and Stephens [1884] 14 QBD 273:
3 sailors and cabin boys were shipwrecked
20 days, 8 of which were with no food
One of the sailors decided that the only way to survive was to kill and eat the cabin
boys
They were rescued a few days later and were arrested for murder and tried
Judiciary acknowledged that they were in a bad situation but were both still found
guilty
At this time murder would have usually been the death penalty but the courts
acknowledgement of the necessity of the situation meant they only got a prison
sentence
Southwark LBC v Williams (1971) Ch 734:
Family were made homeless and took up squatting rights in some empty property
Were being evicted from the property
Claimed a defence of necessity
Lord Denning: ‘Necessity would open a door which no man could shut...if hunger
were once allowed to be an excuse for stealing it would open way through which all
kinds of disorder and lawlessness would pass. If homelessness were admitted as a
defence to trespass, no man's house would be safe.. The plea would be an excuse
for all sorts of wrongdoing. So the courts must, for the sake of the law and order, take
a firm stand. They must refuse to admit the plea of necessity to the hungry and the
homeless and trust that their distress will be relieved by the charitable and the good.’
Medical Necessity:
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 1 All ER 553
A women had 5 daughter and she wanted assurance from the health authority
not to prescribe her daughter birth control without her knowing until they were
16
The health authority couldn’t provide such assurance
Parker LJ
‘That bona fide exercise by a doctor of his clinical judgement as to what he
honestly believed to be necessary for the physical, mental and emotional
health of his patient was a complete negation of the guilty mind which was
essential for the commission of a criminal offence’
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
, Forced sterilisation of a 36 year old women who was in a mental institute
She had the mental age of a 5 year old
Developed a relationship with another patient and they couldn’t stop them
having sex but also couldn’t allow her to have a child
Lord Goff
‘Not only (1) must there be a necessity to act when it is not practicable to
communicate with the assisted person, but also (2) the action taken must be
such as a reasonable person would in all circumstances take, acting in the
best interests of the assisted person’
Bournewood Community & Mental Health NHS Trust, Ex Parte L. [1999] 1 A.C. 458
Autistic patient incapable of consenting to treatment
Lord Goff
‘The concept of necessity has its role to play in all branches of our law of
obligations...and our criminal law. It is therefore a concept of great
importance. It is perhaps surprising, however, that the significant role it has to
play in the law of torts has come to be recognised at so late a stage in the
development of our law’
Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961:
This was about whether the court could say yes to the medical staff separate the 2
twins as it would kill 1 to save the other
However if they were left, they would both die
Ward LJ
‘In this case the right answer is not at all as easy to find. I freely confess to having
found it exceptionally difficult to decide’
Brook LJ
‘The usual view is that necessity is no defence to a charge of murder. This, if
accepted, is a non-utilitarian doctrine; but in the case of a serious emergency is it
wholly acceptable? If you are roped to a climber who has fallen, and neither of you
can rectify the situation, it may not be very glorious on your part to cut the rope, but is
it wrong? Is it not socially desirable that one life, at least, should be saved? Again , if
you are flying an aircraft and the engine dies on you, it would not be wrong but would
be praiseworthy, to choose to come down in a street (where you can see you will kill
or injure a few), rather than in a crowded sports stadium’ …. ‘But in this case of
cutting the rope you are only freeing yourself for someone who is, however
involuntarily, dragging you to your death. And in the case of the aircraft you do not
want to kill anyone; you simply minimise the slaughter you are bound to do one way.
The question is whether you can deliberatey kill someone for calculated reasons?
‘We do regard the right to life as almost a supreme value, and it is very unlikely that
anyone would be held to justified in killing for any purpose except the saving of other
life, or perhaps the saving of great pain of distress’
Directed MR required to separate them and decided technically they would be
performing murder
However that the necessity negated the MR and they were allowed to separate them
Nicklinson v MoJ [2012 EWHC 2381 (Admin):
Wanted a doctor to assist him in committing suicide as he wasn’t able to do so
himself
Used the conjoined twins case as a precedent for why it should be allowed
Courts didn’t agree and said that parliament had to make this decision
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