Necessity is a complete defence. If the defendant meets the evidential burden, the prosecution must meet the legal burden to disprove their claim.
Necessity is a justification for choosing the lesser evil.
Requirement:
‘the [criminal] act is needed to avoid inevitable and irreparable evil;
no more should be done than is reasonably necessary for the purpose to be achieved; and
the evil inflicted must not be disproportionate [to the evil avoided]…’ [1]
Interests Served:
Public Interest:
There are policy reasons for the greater good of the public as to why the crime was necessary.
Criminal Damage Act 1971:
s5(2) – lawful excuse to criminal damage if –
s5(2)(a) – ‘destroys, damaged or threatened to destroy or damage the property… to protect the property belonging to himself or another…’
Justification that it was necessary to destroy or damage property to protect something else. EG: pulling down a property to prevent fire spreading to other properties.
V’s Interest:
It is within the victim’s interests to prevent a greater harm being done to them.
In Re F, doctors came to court to seek a declaration that they would not be committing GBH if they forcibly sterilised a patient who was likely to get pregnant but had the mental capacity of a child. They argued that if she were to get pregnant, that would harm her more than sterilising her. Doctors received the declaration requested.
D’s Interests (Private Necessity):
It is within the defendants interests to prevent a greater harm being done to them.
EG: a homeless person breaking into a property to prevent themselves freezing to death.
‘if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass. If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut.’ [2]
In Dudley and Stevens, D and S were sailors. Their vessel sank and they boarded a lifeboat. After many days adrift, the group on the boat ran out of food. D and S killed the weakest of the party to survive by consuming him. They were not convicted by jury for murder. They were retried several times, but eventually pardoned.
Interests of Another:
In Re A, doctors came seeking a declaration that they would not be committing murder if they killed one of the conjoined twins while separating the pair. If they left them, both would die, whereas only one would die if they attempted surgery. As one of the children was going to die regardless of what was done, the Court of Appeal granted the declaration.
‘that it must be impossible to preserve the life of X without bringing about the death of Y, that Y by his or her very continued existence will inevitably bring about the death of X within a short period of time, and that X is capable of living an independent life, but Y is incapable under any circumstances (including all form of medical intervention) of viable independent existence.’
This does not apply to euthanasia or assisted suicide. [3]
Difference from Emergency:
‘Emergency is…not the criterion or even a pre-requisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity, not of emergency.’ [4]
Resources:
References:
[1] Re A (Children) [2000], Brooke LJ (Paragraph breaks added) [2] Southwark London Borough Council v Williams (1971) Ch 734 (Lord Denning) [3] R(Nicklinson) v Ministry of Justice [2014] UKSC 38 [4] Re F (Mental patient sterilisation) [1990] 2 AC 1
Cases Mentioned: Re F (Mental patient sterilisation) [1990] 2 AC 1
R v Dudley and Stephens (1884) 14 QBD 273 DC
Re A (Children) [2000]
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