Necessity cases

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R v Kitson [1955] 39 Cr App R 66

Facts: Kitson was a passenger in his brother–in-laws car. He was intoxicated and had fallen asleep. He awoke to find that the driver had disappeared and the car was coasting down a hill. He grabbed the steering wheel and managed to safely steer the car and stop.

Held: He was still convicted of drink-driving.

R v Martin (1989) 88 Cr App R 343

Facts: The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the son was late for work and she feared he would lose his job if her husband did not get him to work. The appellant pleaded guilty to driving whilst disqualified following a ruling by the trial judge that the defence of necessity was not available to him. He appealed the ruling.

Held: Appeal allowed. The defence of duress of circumstances should have been available to him.

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147

Facts: Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two and capable of living independently. However, Mary was weaker, she was described as having a primitive brain and was completely dependent on Jodie for her survival. According to medical evidence, if the twins were left as they were, Mary would eventually be too much of a strain on Jodie and they would both die. If they operated to separate them, this would inevitably lead to the death of Mary, but Jodie would have a strong chance of living an independent life. The parents refused consent for the operation to separate them. The doctors applied to the court for a declaration that it would be lawful and in the best interests of the children to operate. The High court granted the declaration on the grounds that the operation would be akin to withdrawal of support ie an omission rather than a positive act and also the death of Mary, although inevitable, was not the primary purpose of the operation. The parents appealed to the Court of Appeal on the grounds that the learned judge erred in holding that the operation was (i) in Mary's best interest, (ii) that it was in Jodie's best interest, and (iii) that in any event it would be legal.

Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors.

Re F (Mental patient: Sterilsiation) [1990] 2 AC 1

Facts: F was a 36 year old woman. She had a serious mental disability caused by an infection when she was a baby. She had been a voluntary in patient in a mental hospital since the age of 14. She had the verbal capacity of a child of two and the mental capacity of a child of 4. She developed a sexual relationship with a fellow patient. Her mother and medical staff at the hospital were concerned that she would not cope with pregnancy and child birth and would not be able to raise a child herself. Other methods of contraceptives were not practical for her. They sought a declaration that it would be lawful for her to be sterilised. F was incapable of giving valid consent since she did not appreciate the implications of the operation.

Held: The declaration was granted. It would be lawful for the doctors to operate without her consent.

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Southwark LBC v Williams [1971] 1 Ch 734

Held: The Court of Appeal held that homeless people seeking temporary refuge in empty accomodation had committed trespass. The could not rely on a defence that the trespass was a lesser wrong than their suffering.

  • Lord Denning explained: "... 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."

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