Necessity Defence

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The necessity defence is a complete defence which protects an accused who was compelled to break the law in order to avoid an even worse consequence. For policy reasons (especially the fear of opening up the floodgates), the application of the defence is extremely narrow and it is rarely ever argued successfully. The principles governing the defence are as follows:

  • The ultimate question whether the accused honestly believed on reasonable grounds that his course of action was necessary in order to avoid the peril he was threatened with: Rodgers.
  • Relevant considerations include:
    • The seriousness of the harm which was being avoided: Loughnan.
    • The imminence of that harm: Loughnan.
    • The proportionality between the conduct of the accused and the harm which he was trying to avoid: Loughnan.
    • Whether there were any other reasonable alternatives to the course of action taken by the defendant (extremely important): Rodgers.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 615-629.

Introduction

[1] The defence of necessity exists because of the law's recognition that there are circumstances when the law has to be broken in order to avoid even more terrible consequences. The defence of necessity is similar but distinct from the defence of duress, by which the accused is induced to break the law under threats of violence.

  • In other words, necessity is when a person is compelled to break the law because of something which is not duress (not the threat of violence etc).
  • It is a complete defence.

The courts have treated defences like necessity and duress with great caution because of policy reasons such as the suspicion of self-help remedies and the fear of opening the floodgates.

  • Necessity is very rarely successfully raised.

Historical Origins of Necessity

[2] The modern defence of necessity has its origins in the notorious case of Dudley and Stephens :

  • There is no absolute and unqualified necessity to preserve one’s life (citing for example military duty) and that it is impossible to comparatively measure the values of human lives.

In the more recent case of Southwark London Borough Council v Williams and Anderson,[3] the defendants were in desperate need of housing and began squatting in some empty houses owned by the local authority. The defence of necessity was raised unsuccessfully in relation to an order to vacate the premises.

  • “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. It would not only be those in extreme need who would enter” (open the floodgates).

Current law: the elements

[4] The reluctance of the courts to recognise the defence has been overcome to some degree (although not in the context of murder) and the test formulated in Loughnan[5] is widely regarded as the leading statement of the law. Loughnan posited three elements:

  1. The criminal acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or others he was bound to protect.
  2. The accused must honestly believe that he was placed in a situation of imminent peril.
  3. The acts done in to avoid the imminent peril must not be out of proportion to the peril avoided (would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?).

This was examined in Rodgers:

  • The elements of seriousness of the evil, immediacy or imminence of the peril and proportionality from Loughnan are confirmed, but they should be treated as considerations as opposed to strict 'requirements'.
  • These considerations influence the ultimate question, which is whether the accused honestly believed on reasonable grounds that his course of action was necessary in order to avoid the peril he was threatened with.
  • Another important consideration is whether there were any other reasonable alternatives to the course of action taken by the defendant.

The Code jurisdictions (Queensland, Western Australia and the Northern Territory) have a similar defence to necessity, that of “sudden or extraordinary emergency”.

Types of Necessity

Necessity and Prison Escapes

[6] The court in Rodgers referred to the American decision People v Lovercamp,[7] which stated that a prison escapee hoping to rely on necessity must have reported to the authorities immediately after escaping. It spawned a large body of case law in the US, such that prison escapes became a recognised head of necessity.

  • The scope and availability of the defence was based on intolerable conditions, recognising that generally unsanitary or unsafe living conditions or lack of proper medical facilities or continuing threats of physical or sexual abuse may justify the escape despite lack of a “specific threat”.
  • As the Michigan Court of Appeals wrote in People v Harman,[8] “If our prison system fails to live up to its responsibilities in this regard we should not, indirectly, countenance such a failure by precluding the presentation of a defence based on those facts.”
  • Australian courts have yet to acknowledge these problems more openly than in Loughnan and Rodgers.

Necessity and Driving Offences

[9] In White,[10] the necessity defence was a successful defence to a speeding charge.

Facts: White gave evidence that at the time he was transporting his sick son to a doctor, the son had chronic asthma. When stopped by the police the appellant queried the speed limit and the speed at which police alleged he was traveling but did not raise the matter of his son’s condition.

  • Held: in quashing the conviction and allowing the defence, Shadbolt DCJ stated “as the offence becomes less serious, the balance more readily falls to the side of one who commits such an offence.” He also noted that the social cohesion of society should be considered as a matter of public policy.

See Textbook p 623 for references to other driving cases.

Medical Necessity

[11] In Quayle,[12] necessity was raised as a defence for the possession and cultivation of cannabis.

  • The primary basis of the appeal was that the appellants suffered from various medical conditions which caused chronic pain and that the avoidance of severe pain should be equated with the avoidance of serious injury for the purposes of necessity.
  • The court rejected this argument, holding that there must be an objectively ascertainable extraneous cause of the threatened danger.

In Canada, the Ontario Court of Appeal found for the appellant, using the defence of necessity in similar circumstances in Parker.[13]

In Re A (Children),[14] doctors owing duties to both conjoined twins were faced with a dilemma that any chance of saving the life of one over a longer period involved an operation which would necessarily end the life of the other.

  • Dudley and Stephens has sometimes been taken as a meaning that necessity can never under any circumstances provide legal justification for murder, however, in this exceptionally rare medical phenomenon an exception was made.

Necessity and Political Protest

[15] Necessity has been raised at trials where the primary motivation for the offence was political. Frequently the offence is one of trespass or occupation of premises arising out of a protest. The court is used in these cases as a forum to air the political cause in public.

  • In Dixon-Jenkins[16] the accused failed to successfully raise necessity because of the lack of an imminent peril. The accused referred to himself as an “anti-nuclear warrior” and had sent letters to schools, public authorities and commercial establishments, threatening to place bombs, contaminate food with glass slivers and “kneecap” officials unless they undertook to engage in certain anti-nuclear activities. He even placed 10 authentic-looking but inactive bombs in schools. He claimed to represent the human race and to be reacting to the threat of nuclear war.
  • Loughnan was approved and applied in Limbo v Little,[17] where the appellant was a peace activist who had been charged with trespass to the Pine Gap “Joint Defence Space Research Facility” and argued that his trespass was justified on the basis that the facility was a prime nuclear target and its presence near the inhabitants of Alice Springs placed them in imminent peril. Necessity failed.
  • In Jones v Gloucestershire Crown Prosecution Service,[18] the co-accused were charged with a number of offences around an RAF base, including conspiracy to commit criminal damage and attempted arson. They sought to raise the defence of necessity and to present evidence that the war in Iraq was illegal, the court ruled that this was inadmissible.

The Regulation of Abortion

[19] The necessity defence has successfully been applied to abortion cases, charged under s 82-84 of the Crimes Act.

  • In Wald,[20] it was held that necessity was available to an abortion charge where there was an honest belief that the actions were necessary to avoid serious danger to the life of a woman or their physical or mental health and not merely the normal dangers of the pregnancy. It was also necessary that the danger of the operation was not out of proportion to danger presented.
  • The Wald test was applied in K v Minister for YACS,[21] where a Minister was required to consent to the abortion of a ward of the state. The fifteen year-old girl had suffered severe disadvantage throughout her life and no family members to assist in the care of a child. She wished to have an abortion and had threatened self-harm. Helsham CJ found that it was “essential in this child’s best interests that it be done.”
  • The Wald test was expanded in Kirby P’s judgement in CES v Superclinics (Australia) Pty Ltd (a civil case),[22] where the danger to the woman’s health could include one arising at some time during the pregnancy as well as after the birth of the child. CES confirmed Wald’s approach to taking economic and social circumstances into account.
  • The landmark English case of Bourne[23] involved a surgeon who was acquitted for performing an abortion on a fourteen year-old girl who had been subject to a violent pack rape by several soldiers.
  • The American abortion case of Roe v Wade,[24] was based on the constitutional right to privacy rather than necessity but included similar concerns for the health of the mother.

See Textbook pp 628-9 for further sources relating to abortion and the defence of necessity.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 615-6.
  2. Textbook, pp. 616-9.
  3. [1971] 1 Ch 734.
  4. Textbook, pp. 619-22.
  5. [1981] VR 443, 448.
  6. Textbook, pp.622-3.
  7. (1970) 43 California Appeals 3d 823.
  8. 220 NW2d 212 at 213 (1974).
  9. Textbook, p. 623.
  10. (1987) 9 NSWLR 427.
  11. Textbook, p. 634.
  12. [2005] EWCA Crim 1415.
  13. (2000) 75 CRR (2d) 233.
  14. [2000] EWCA Civ 254.
  15. Textbook, pp. 625-6.
  16. (1985) A Crim R 372.
  17. (1989) 45 A Crim R 69.
  18. [2004] EWCA Crim 1981.
  19. Textbook, pp. 626-9.
  20. (1971) 3 NSWDCR 25, 29.
  21. [1982] 1 NSWLR 311.
  22. (1995) 38 NSWLR 47.
  23. [1939] 1 KB 687.
  24. 410 US 113 (1973).
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