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The meaning of necessity

There has been some confusion over the terminology to the defence of necessity in criminal law. The term has been used in at least three different senses:

  1. The majority of the academic materials have used the term 'necessity' to refer to a defence that the defendant did 'the lesser of two evils' i.e. that the defendant was in a situation which meant that whatever he or she did would result in harm being caused and the defendant chose the course of harm which resulted in the least harm.
  2. Some cases have used the term 'necessity' to mean duress of circumstances (see R v Martin (1989)).
  3. Sometimes necessity is used to describe an overarching doctrine which explains self-defence, duress, and the 'lesser of two evils'.

Cases denying the existence of a general defence of necessity

The courts have been consistent in denying a general defence of necessity.

See the following cases:

Despite the denial of a general defence of necessity, in fact a limited defence of necessity is recognised at common law and in some statutes.

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The limited defence of necessity at common law

The courts have been willing to accept a defence of necessity in special defined circumstances

  1. Where the defendant damages or steals another's property in the public interest (e.g. in order to create a firebreak he or she pulls down someone's house).
  2. Where the defendant damages the defendant's property or interferes with another's property in order to save his or her own person or property (e.g. where the defendant damages another''s property to prevent the spread of fire onto his or her own land).
  3. Where actions taken for the benefit of another person where that person is unable to consent (see the case of Re F (Mental patient: Sterilsiation) [1990]).
  4. It is permissible for a police constable to direct people to break traffic regulations if that is necessary and reasonable to protect life or property.
  5. A very limited category of necessity as a defence to murder was recognised in Re A (Children) (Conjoined Twins: Surgical Separation) [2001].

Brooke LJ, in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] quoted with approval three requirements for the defence of necessity:

  • The act is needed to avoid inevitable and irreparable evil;
  • No more should be done than is reasonably necesary for the purpose to be achieved; and
  • The evil inflicted must not be disproportionate to the evil avoided.

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