Necessity in English law
Encyclopedia
In English law
, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded. However, the Crown Prosecution Service
tends to choose not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances.
of Regina v. Dudley & Stephens (1884) 14 QBD 273 DC
, where four shipwreck
ed sailor
s were cast adrift in a small boat without provisions. To save themselves, the three strongest decided to eat
the fourth, the 17 year-old cabin boy
. The court
ruled that cannibalising
the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of natural causes, the sailors killed the boy intentionally and were guilt
y of murder
. There was some degree of necessity arising from the threat of starvation
but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally.
Dudley and Stephens were convicted of murder and sentenced to be hanged, however their sentence was later reduced to just six months in prison. The fourth man, Brooks, was not tried, as he had not participated in the murder. The principles from this case form the basis of the defence of necessity not being available for murder.
in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. The general approach was laid down by Lord Denning in Southwark London Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defense because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify burglary
to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that
When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offense charged. This defendant robbed two building societies in order to repay debts. The form of defense was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.
resin to be used for pain management. The choice facing the appellants was not severe pain without cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects without cannabis, and absence of pain with minimal side effects with cannabis. The difference was restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prima facie
possibility of serious injury, let alone one such as would overwhelm the will of the defendant. There was no evidence from an objective stand point that the appellants were acting reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the appellants to control pain by conventional and legal means. To admit the medical use of cannabis on the ground of necessity would defeat the legislative purpose underpinning the Misuse of Drugs Act 1971
. Further, for the defence of necessity to succeed, the threat of injury must be immediate and imminent, and come from an extraneous source. The parties were responding to continuous pain over a period of time and, in any event, pain is too subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to resist. The parties then argued that the law breached Article 8 European Convention on Human Rights
by interfering with the right of privacy. Interference with the right of respect for private life is permissible under Article 8(2) if "in accordance with the law and . . .. necessary in a democratic society . . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, but their conclusion was that this was a policy matter more properly within the remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall within the protection of Article 8 ECHR.
In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road accident. He was charged with possession under s5(2) Misuse of Drugs Act 1971
. The judge at first instance refused to leave the defence of medical necessity
to the jury so the defendant changed his plea to guilty. The Court of Appeal
held that Article 3 ECHR not to subject a person to inhuman or degrading treatment does apply to the State. The defendant argued that using cannabis was the only way in which his symptoms could be alleviated and that he could not do so without committing a criminal offence. Thus, the State, by prosecuting him, subjected him to degrading treatment. The Court said that the State, by refusing cannabis, neither did nor refrained from doing anything that would subject the defendant to degrading treatment. The State had done nothing to change the defendant's condition for better or worse, and there was nothing to require the Court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. The Court applied Quayle where the focus was on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose and effect of the legislative scheme.
In Re A (Children) (Conjoined Twins: Surgical Separation)
(2000) 4 AER 961 Jodie and Mary were ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it was lawful to perform surgery to separate them, when the separation would kill Mary. If the operation did not take place there was evidence that both would die within six months. The court proceeded on the basis that the potential charge would be murder in that, although the girls were physically joined, they were separate "lives in being". The court decided that the operation would be lawful. Ward LJ. concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy
of "sanctity of life" because of the "quasi self-defence", but Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests, because it denied her "inherent right to life." Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished Dudley & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley. The decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children, but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded. However, the Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
tends to choose not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances.
History
This defence was used in the early trialTrial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
of Regina v. Dudley & Stephens (1884) 14 QBD 273 DC
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, where four shipwreck
Shipwreck
A shipwreck is what remains of a ship that has wrecked, either sunk or beached. Whatever the cause, a sunken ship or a wrecked ship is a physical example of the event: this explains why the two concepts are often overlapping in English....
ed sailor
Sailor
A sailor, mariner, or seaman is a person who navigates water-borne vessels or assists in their operation, maintenance, or service. The term can apply to professional mariners, military personnel, and recreational sailors as well as a plethora of other uses...
s were cast adrift in a small boat without provisions. To save themselves, the three strongest decided to eat
Eating
Eating is the ingestion of food to provide for all organisms their nutritional needs, particularly for energy and growth. Animals and other heterotrophs must eat in order to survive: carnivores eat other animals, herbivores eat plants, omnivores consume a mixture of both plant and animal matter,...
the fourth, the 17 year-old cabin boy
Cabin boy
A Cabin boy or ship's boy is a boy who waits on the officers and passengers of a ship, especially running errands for the captain....
. The court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
ruled that cannibalising
Cannibalism
Cannibalism is the act or practice of humans eating the flesh of other human beings. It is also called anthropophagy...
the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of natural causes, the sailors killed the boy intentionally and were guilt
Guilt
Guilt is the state of being responsible for the commission of an offense. It is also a cognitive or an emotional experience that occurs when a person realizes or believes—accurately or not—that he or she has violated a moral standard, and bears significant responsibility for that...
y of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. There was some degree of necessity arising from the threat of starvation
Starvation
Starvation is a severe deficiency in caloric energy, nutrient and vitamin intake. It is the most extreme form of malnutrition. In humans, prolonged starvation can cause permanent organ damage and eventually, death...
but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally.
Dudley and Stephens were convicted of murder and sentenced to be hanged, however their sentence was later reduced to just six months in prison. The fourth man, Brooks, was not tried, as he had not participated in the murder. The principles from this case form the basis of the defence of necessity not being available for murder.
The principles
There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defenses of necessity and duressDuress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. The general approach was laid down by Lord Denning in Southwark London Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defense because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that
- "If the defense of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale."
When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offense charged. This defendant robbed two building societies in order to repay debts. The form of defense was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.
Medical necessity
In Quayle and Others v R; Attorney General's Reference (No. 2 of 2004) (2005) EWCA Crim 1415 each defendant appealed convictions associated variously with the cultivation or possession of cannabisCannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
resin to be used for pain management. The choice facing the appellants was not severe pain without cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects without cannabis, and absence of pain with minimal side effects with cannabis. The difference was restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
possibility of serious injury, let alone one such as would overwhelm the will of the defendant. There was no evidence from an objective stand point that the appellants were acting reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the appellants to control pain by conventional and legal means. To admit the medical use of cannabis on the ground of necessity would defeat the legislative purpose underpinning the Misuse of Drugs Act 1971
Misuse of Drugs Act 1971
The Misuse of Drugs Act 1971 is an Act of Parliament which represents UK action in line with treaty commitments under the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic...
. Further, for the defence of necessity to succeed, the threat of injury must be immediate and imminent, and come from an extraneous source. The parties were responding to continuous pain over a period of time and, in any event, pain is too subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to resist. The parties then argued that the law breached Article 8 European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
by interfering with the right of privacy. Interference with the right of respect for private life is permissible under Article 8(2) if "in accordance with the law and . . .. necessary in a democratic society . . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, but their conclusion was that this was a policy matter more properly within the remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall within the protection of Article 8 ECHR.
In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road accident. He was charged with possession under s5(2) Misuse of Drugs Act 1971
Misuse of Drugs Act 1971
The Misuse of Drugs Act 1971 is an Act of Parliament which represents UK action in line with treaty commitments under the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic...
. The judge at first instance refused to leave the defence of medical necessity
Medical necessity
Medical necessity is a United States legal doctrine, related to activities which may be justified as reasonable, necessary, and/or appropriate, based on evidence-based clinical standards of care. Other countries may have medical doctrines or legal rules covering broadly similar grounds...
to the jury so the defendant changed his plea to guilty. The Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that Article 3 ECHR not to subject a person to inhuman or degrading treatment does apply to the State. The defendant argued that using cannabis was the only way in which his symptoms could be alleviated and that he could not do so without committing a criminal offence. Thus, the State, by prosecuting him, subjected him to degrading treatment. The Court said that the State, by refusing cannabis, neither did nor refrained from doing anything that would subject the defendant to degrading treatment. The State had done nothing to change the defendant's condition for better or worse, and there was nothing to require the Court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. The Court applied Quayle where the focus was on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose and effect of the legislative scheme.
In Re A (Children) (Conjoined Twins: Surgical Separation)
Re A (Children) (Conjoined Twins: Surgical Separation)
Re A [2001] Fam 147 was an English Court of Appeal decision on the separation of conjoined twins. The case raised several legal, ethical and religious dilemmas including whether it would be permissible to kill one of the children to save the other. and whether it was permissible to act against...
(2000) 4 AER 961 Jodie and Mary were ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it was lawful to perform surgery to separate them, when the separation would kill Mary. If the operation did not take place there was evidence that both would die within six months. The court proceeded on the basis that the potential charge would be murder in that, although the girls were physically joined, they were separate "lives in being". The court decided that the operation would be lawful. Ward LJ. concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
of "sanctity of life" because of the "quasi self-defence", but Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests, because it denied her "inherent right to life." Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished Dudley & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley. The decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children, but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.