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On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse

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Abstract

The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present.

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Notes

  1. Williams (1961, p. 728). For an earlier despairing statement to the same effect see Stephen (1883, Vol. 2, p. 108).

  2. R v Shayler [2003], 1 AC 247 para 17.

  3. op cit, p. 722.

  4. See the judgment of Lord Coleridge CJ in R v Dudley and Stephens (1884) 14 QBD 273, which concerned the killing of a shipwrecked sailor by two of his companions in order that they might survive by living off his body. For the fascinating legal and maritime context of this case see the excellent study by Simpson (1984).

  5. R v Dudley and Stephens (1884), 14 QBD 273; R v Quayle [2005], 2 Cr App R 34 (p. 527).

  6. R v Quayle [2005], 2 Cr App R 34 (p. 527).

  7. ibid. This objection and the previous one express judicial concerns over what Norrie has described as the ‘Pandora’s box’ problem, namely that a general defence of necessity would allow the raising of all kinds of social, economic or political arguments to justify or excuse crime that would present the courts with extremely difficult issues. See Norrie (2001, p. 159.)

  8. London Borough of Southwark v Williams [1971], Chap. 734. A similar anxiety underlay the pronouncements by Hale (1736, 1 PC 54) and Blackstone (1765, 4 Bl Com 31) that necessity would be no defence to larceny of food or clothing.

  9. The literature on this topic is enormous, and space does not permit a full bibliography. The modern debates start with Fletcher’s seminal discussion in Fletcher (1978, Chap. 10).

  10. A classic example is the statement by Lord Coleridge in R v Dudley and Stephens (1884) 14 QBD 273 that the killing in that case must be murder unless it “can be justified by some well-recognised excuse admitted by the law”. See also the judgment of Lord Hailsham in R v Howe [1987] AC 417.

  11. R v Dudley and Stephens (1884) 14 QBD.

  12. London Borough of Southwark v Williams [1971], Chap. 734.

  13. Mouse’s Case (1608) 12 Co Rep 63 (no civil liability for jettison of cargo from a sinking vessel to save passengers); R v Vantandillo (1815) 4 M & S 73 (exposure of smallpox-infected child in the street to take it to a doctor); R v Bourne [1939] 1 KB 687 (no liability for procuring an abortion where the act was done in good faith only for the purpose of preserving the life of the mother).

  14. See Williams (1961, p. 726), also giving the example of prison breach to escape from fire.

  15. See Glazebrook (1972a). There is a specific statutory defence to crimes of damage to property of belief in necessity: Criminal Damage Act 1971s 5(2)(b). The defence is expressed in the statute to be a ‘lawful excuse’.

  16. See R v Martin (1989), 88 Cr App R 343; R v Shayler [2001], 1 WLR 2206; Re A (Conjoined Twins) [2000], 4 All ER 961; R v Safi [2004], 1 Cr App R 14 (p. 157).

  17. Simester and Sullivan (2007), s 21.2, esp. at p. 706; Smith and Hogan (2005, pp. 329ff); Ashworth (2006, pp. 136ff, esp. at p. 139).

  18. Criminal Law Act 1967 s3; Simester and Sullivan (2007); Smith and Hogan (2005) esp at p. 334; Ashworth (2006).

  19. Simester and Sullivan (2007), s 20.1; Smith and Hogan (2005, pp. 296ff); Ashworth (2006, pp. 219ff).

  20. Some American commentators refer to this as ‘situational duress’: see Westen and Mangiafico (2003).

  21. R v Pommell [1995], 2 Cr App R 607; R v Hasan [2005], 4 All ER 685 para 21 (Lord Bingham).

  22. Re A (Conjoined Twins) [2000], 4 All ER 961.

  23. Ost (2005).

  24. Gardner (2005).

  25. Clarkson (2004).

  26. For example, the American Law Institute’s Model Penal Code s.3.02.

  27. In this context I take a ‘proportionate’ evil done by the defendant to be one that is less than or equal to the evil the defendant sought to avoid, or, possibly, slightly greater. The contrast is with a disproportionate response from the defendant, which I take to be the perpetration of a significantly greater evil than the one the defendant sought to avoid.

  28. It is this conception of necessity as a defence which is advocated by Clarkson, op cit.

  29. Smith and Hogan (2005, p. 322). See also Bohlander (2006). On the decision of the German Federal Constitutional Court in 2006 that Section 14(3) of the German Aviation Security Act, permitting such action, was unconstitutional, see Moller (2006).

  30. It might be argued that the killing of an unlawful aggressor is a lesser evil than the killing of an innocent victim. But such an argument would have to meet the objection that in principle all human life is equally valuable, and it runs into the further problem that the ‘assassin’ may also be a person legally innocent, such as a child under the age of criminal responsibility or a person who is legally insane. See Leverick (2007).

  31. See, eg, Hale1736, (1 PC 51) and R v Dudley and Stephens (1884), 14 QBD 273, where Lord Coleridge stated that the ‘necessity’ the defendants had argued for on the facts of the case was not what the common law had ever recognised as necessity, namely self-defence against unlawful attack.

  32. This is unclear. Lord Diplock seems to have envisaged the possibility in Reference under s48A of the Criminal Appeal (Northern Ireland) Act 1968 (No 1 of 1975) [1976], 2 All ER 937 at pp. 947–948. The European Commission of Human Rights held in Kelly v United Kingdom (1993), 74 DR 139 that the fatal shooting by soldiers of a terrorist suspect in a fleeing car could be justified under Art 2 of the European Convention on Human Rights as absolutely necessary in order to effect a lawful arrest, but see the criticism by Smith (1994).

  33. R v Hudson and Taylor [1971], 2 QB 202, per Lord Widgery CJ at p. 206.

  34. R v Bourne (1952), 36 Cr App R 125, per Lord Goddard CJ at p128. Cf Lynch v Director of Public Prosecutions for Northern Ireland [1975], AC 653.

  35. In R v Rodger and Rose [1998], 1 Cr App R 143 the defendants pleaded that it was necessary for them to break out of prison because they had become suicidal as a result of an increase in the ‘tariffs’ of their sentences. The Court of Appeal held that no defence of necessity was available where there was no extraneous influence on the defendants and “it was solely the suicidal tendencies, the thought processes and the emotions of the offenders themselves which operated as duress”.

  36. Op cit, para. 10.3.2 et seq.

  37. (1984), 13 DLR (4th) 1.

  38. We would be surprised because this would be inconsistent with the expectations we have of her in her role as a doctor: see Gardner (1998).

  39. Wilson (2002, p. 293).

  40. Op cit, p. 88.

  41. Ibid.

  42. Horder (1998, p. 149).

  43. For example, the arrest of a suspected offender (public defence).

  44. For example, self-defence against unlawful attack (private defence). A self-defender can claim not only sympathy for the act of self-preservation in an emergency but also a moral right of defence against an aggressor. The latter has by his unlawful attack forfeited his right to equality with the self-defender, and the state is unable to provide necessary protection in the circumstances.

  45. See the discussion of excuses in Horder (2004); Gardner (1998) and Westen (2006).

  46. Fletcher (1978, p. 830ff); Dressler (1989). For an argument to the contrary see Westen and Mangiafico (2003).

  47. Horder (1998).

  48. Uniacke (1994).

  49. Op cit, p. 303.

  50. See generally Gardner (1996).

  51. See F v West Berkshire Health Authority [1989], 2 All ER 545 (sterilisation of a mentally impaired adult at risk of pregnancy), discussed below.

  52. Re A (Conjoined Twins) [2000], 4 All ER 961, discussed below.

  53. The courts have adopted this rule mainly because they conceptualise duress as an excuse and then hold that there can be no excuse for the taking of innocent life. There is also a policy reason, namely the need to avoid a ‘murderers charter’ for terrorists and organised criminals.

  54. For a lucid account of the normative significance of this standard, see Duff (1993).

  55. Criminal Justice and Immigration Act 2008, s76(7), giving statutory effect to the authoritative dicta in Palmer v R [1971], AC 814.

  56. For discussion and the relevant authorities see Smith and Hogan (2005, pp. 296–315).

  57. (1988), 88 Cr App R 159.

  58. (1989), 88 Cr App R 343.

  59. (1884), 14 QBD 273.

  60. We must assume for the purposes of the argument that D is not in a position to kill his wife instead of E. If he were, the case would be one of private defence against a wrongdoer, and would be regarded by most scholars as clearly one of justification.

  61. The Law Commission in England has recently recommended a change to the law so as to allow duress as a defence to murder, albeit with a reverse onus on the defendant to prove the defence: Law Com No 304, Murder, Manslaughter and Infanticide (2006) Part 6.

  62. Note that the argument is not that the duty of care which D owes to his baby generates a duty of rescue that obliges him to kill E if that is the only way of effecting a rescue. Rather it is that the existence of the legal duty of care provides D with a moral reason for preferring the baby’s life to E’s which the law could recognise in the form of a legal permission to him to act as he does.

  63. Pace Hale (1 PC 51), Blackstone (1765, 4 Bl Com 28), R v Dudley and Stephens (1884) 14 QBD 273, and Lord Hailsham in R v Howe [1987] AC 417. However, in R v Hasan [2005] 4 All ER 685 Lord Bingham described the logic of the argument that duress should extend to murder as ‘irresistible’.

  64. The idea of the ‘will being overborne’ in cases of duress is similarly over-inclusive. For other problems with the concept of moral involuntariness see Clarkson (2004).

  65. Fletcher (1978, pp. 759–762); Williams (1982) and Robinson (1982). But see also Greenawalt’s well-known critique (1984); Gur-Arye (1986).

  66. F v West Berkshire Health Authority [1989], 2 All ER 545.

  67. R v Bournewood Community and Mental Health NHS Trust [1998], 3 All ER 289.

  68. [2000], 4 All ER 961.

  69. The operation was then carried out. Mary died, but Jodie survived and is believed to be well and living a normal life.

  70. Rogers (2001). See also Horder (1998).

  71. [2000], 4 All ER 961, 1067.

  72. See for further discussion Uniacke (2001).

  73. [2000], 4 All ER 1015–1016.

  74. Ibid, pp. 1065–1067.

  75. Stephen (1887, p. 9).

  76. [2000], 4 All ER 961, 1052.

  77. This much-discussed scenario is based on a real-life incident that is said to have occurred after the sinking of the car ferry Herald of Free Enterprise at Zeebrugge in 1987: see Smith (1989, Chap. 3).

  78. The man on the ladder in the ferry scenario could save himself and the others by climbing the ladder, but if he does not the passengers can save themselves only by pushing him off. There is no other possible victim.

  79. However, talk of ‘an overborne will’ and ‘moral involuntariness’ seems inappropriate in the aircraft hijacking scenario. An alternative and better analysis may be to regard this as a case where the prime minister’s duty not to kill the passengers and crew conflicts with his duty under the Human Rights Act 1998, as the personification of the State, to take operational steps to protect the right to life (Art 2 of the ECHR) of the persons in the tower block who are at risk of death.

  80. Clarkson (2004, p. 87).

  81. For a close analysis see Horder (1998, pp. 151 et seq).

  82. [2000], 4 All ER 961, 1051.

  83. Although he does not seem to have regarded it as important: see ibid, p. 1049.

  84. See his citations of Williams (1961) at ibid, pp. 1038–1039, 1050.

  85. See Brudner (1987).

  86. See generally Dworkin (1977) .

  87. Brooke LJ did not of course have this kind of case in mind.

  88. Westen and Mangiafico (2003) describe such a plea as ‘morally untenable’ (p. 892). Brudner (1987) advocates an ‘agency’ theory of necessity based on a hierarchy of qualitative values which would justify the taking of blood from an unwilling donor if the battery were objectively necessary to the saving of life and imposed no real risk to the capacity for action of the victim. He would draw the line at killing a donor.

  89. Horder (2000), at pp. 180–182.

  90. [2005], 2 Cr. App. R. 34 (p. 527).

  91. Ibid, para. 75.

  92. Gardner (1991).

  93. von Hirsch and Jareborg (1991). For an argument for an alternative, relativized, standard for measuring evils see Westen and Mangiafico (2003).

  94. As the judges have recognised for many years in developing the law on duress.

  95. For doubt about the wisdom of this rule see Clarkson (2004, p. 93).

  96. Ost (2005).

  97. Nor should the courts legitimate a defendant’s unilateral judgment of the circumstances in which such action is permissible (Horder (1998)), and we can extend the point to say that the courts should refuse acceptance of any hypothetical guidelines laid down by a professional body if these have not received legislative approval.

  98. Gardner (2005).

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Dennis, I.H. On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse. Criminal Law, Philosophy 3, 29–49 (2009). https://doi.org/10.1007/s11572-008-9062-5

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