The Courts in the Past Have Been Reluctant to Recognise a General Form of Necessity

The courts in the past have been reluctanttorecognise a general form of necessity. The judges have frequently expressed their concern that this would be seen as going too far towards providing excuses for law breaking.

This is seen in the case of Dudley and Stephens..however, although the court stated that the defence of necessity could not be allowed it did alter the usually mandatory life sentence to 6 months in prison.

This restrictive approach to a defence of necessity may also be seen in Southwark v Williams 1971.

“Necessity would open a door which no man could shut… if hunger were allowed to be an excuse for stealing it would open a way though which all kinds of disorder and lawlessness would pass. So the courts must for the sake of law and order take a firm stand” : Lord Denning!

In Re A however the CA paved the way for an established defence of necessity. It stated that a defence of necessity existed at common law subject to the satisfaction of the three requirements.

Necessity and Murder:

Re A appeared to suggest that the defence of duress could be available to murder and therefore logically to attempted murder and secondary parties. contrary to the decisions in Howe and Dudley and distinguished them accordingly.

The availability of a defence on those facts would mark an absolute divorce of law from morality.

Professor Smith in a lecture however , considered an army corporal’s evidence at a coroner’s inquest following the Zeebrugge Ferry disaster. He suggested that if a set of facts were to come before a court a judge would be able to distinguish Dudley and this would not mark a divorce of law from morality.

Should there be general defence of necessity?

Arguments against:

Denning’s arguments in Southwark

It should be dealt with through discretion over prosecution – Denning again.

Duress of circumstances has been recognised by the courts and this bears a strong similarity to necessity, though of course it is limited to situations in which there is a threat of death/GBH.

Arguments for:

The law should recognise that ignoring a person’s motive behind committing a crime is too narrow! Necessity cases usually involve circumstances beyond a D’s control therefore it is difficult to argue that they acted of their own free will (this is required of criminal law).

The law requires people to behave heroically and this is a strangely high standard to set in a legal system that on the other hand recognises no duty of care (watch child drown for example).

To allow a conviction n to hinge upon prosecutional discretion is too vague.

For Reforms:

See Elliott and Quinn pages 366-367.