Ingenious Defences: Necessity: Does it work? Can it be avoided?

By David Rosen, Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. Visiting associate Professor of Law, Brunel Law School.

What do we mean, when we refer to ‘necessity’ as a Defence?

This is a socio-legal reflection:

Necessity is the need to do an act or thing, which would otherwise be illegal/ a criminal offence.

RED LIGHTS:

How is it otherwise, that a Police Car, or other emergency service vehicle, can drive on the wrong side of the road at high speed, and go through red traffic lights, if not that necessity dictates that they must do this, in order to avoid a greater evil: Alternatively put: Choosing the lesser of 2 evils.

So it is ok for a Police car to go through red lights, but not for anyone else?

What if, heaven forbid, your passenger was suffering a heart attack, and you had dialled 999 to be told there was no one available to get to you, and that you should make your own way to an Accident and Emergency department? Your passenger is in a bad way, and you drive like the wind, going through red lights, triggering a set of speed cameras. You hear nothing of it.

You make it in time to the Hospital, where your passenger was in a life-threatening condition but for your quick response, she is now making a speedy recovery.

Some 5 months later, you receive a letter asking you to identify the driver of your vehicle on that day, and at at time. You promptly give your full name and address, and then receive a Summons for speeding, and another for going through a red light.

You say in your response that you were driving lawfully given all the circumstances, and rely upon the theoretical defence of necessity. If you had obeyed normal traffic rules and regulations, and stopped properly at all red lights, your passenger may possibly have died. The Emergency Doctor also writes a letter confirming the same.

WHAT HAPPENS NEXT?

The Crown Prosecution Service, (‘CPS’), or delegated traffic department, will consider what you have to say. They then need to consider 2 things: Have you satisfied evidential burdens? Is it in the public interest to prosecute you?

It is likely that so long as your passenger really was that unwell, and there is medical evidence to support this, that the CPS will accept your explanation and the case will not go to Court.

WHAT IF YOU ARE LYING?

Well…you, and anyone who helped you make up such a story, including your passenger and the Doctor, will likely find yourselves being prosecuted for attempting to pervert the course of Justice. This is a serious offence, and the Courts will probably show little sympathy with the facade of your Defence. If you gave a statement to the Police, and subsequently that statement proved false, you may also find yourself in Contempt of Court which is punishable with a fine, and/or imprisonment.

IS THERE A DIFFERENCE BETWEEN DURESS AND NECESSITY?

The difference is that necessity is a threat from something occurring imminently naturally, whereas duress is where you are ordered to do something by another, or else something bad may happen to you, or someone you know. With duress, you act against your own will, but for a greater power making you do something you do not want to do.

STEALING TO PAY A DEBT:

In the case of R v Co1e [1994] Criminal Law Review, Lord Justice Simon Brown had to consider whether someone who robbed 2 Banks/Building Societies because he had no other way or repaying debts he had incurred, was justifiable by way of ‘duress of circumstance’. The issue went to the question as to whether repaying the debt was imminent, and whether ere was a causal link between the immediacy of robbing others to repay his debts. The Court was not convinced and the defence failed.

The argument could have been better put by way of pleading guilty to theft, but saying in mitigation that he felt he had no choice but to rob these Banks, such was his desperation, but ultimately what he did was wrong.

HUNGER:

How about the following scenarios?

Scenario 1:

A young boy, without family or friends, finds himself living on the streets, living on hand-outs, but one Winter’s day in the cold and rain, there were no passers-by. He had not eaten for days. He had no alcohol or drugs problems: He was just plain hungry. He broke into a shop, and took some chocolate. He is arrested.

Scenario 2:

You are walking in the street, eating a bag of chips, when a young Mother carrying a small child, grabs the chips from you and runs away. She is arrested.

Scenario 3:

Your ship sinks, and you and 3 others are the only survivors. You have been at sea without sight of land or another ship for days, and realise quite quickly that unless one of you is eaten, that the others will not survive. The cabin boy is eaten, and when a ship finally does come along to rescue you and other survivors, you are all arrested.

Taking the 3 scenarios in reverse order:

Scenario 3:

In the case of Crown v Dudley and Stephens [1884] 14 QBD 273 DC this actually happened, 3 adults and one child. They were not all prosecuted because one of the survivors did not take part in the killing of the cabin boy, but did participate in their…meal. Cannibalism was not considered a criminal offence. The 2 who killed the boy, we’re found guilty, and their protestations of necessity, fell on deaf ears. Why?

It was accepted that there was a threat of starvation, but they were floating in a recognised trade route and could have been rescued at any time. Had they waited a little while longer, they would have been rescued, hungrier, admittedly, but nevertheless with all 4 survivors ultimately saved.

The principles that flowed from this case were that the theoretical defence of necessity can not be used for murder. If it was the case that someone was trying to kill you, and you killed them, your defence would be self-defence, not necessity.

Scenarios 1 and 2:

So, is hunger by way of necessity, a defence?

Lord Denning in the case of Southwark London Borough Council v Williams [1971] 2 All ER thought not. If such a defence were allowed as a general rule, it may open the floodgates to all manner of cases where if someone went hungry that they could always justify taking from those who have.

Lord Denning considered that if such a defence were allowed, that anarchy and disorder would follow.

Since hunger does not arise spontaneously, and other ways exist to prevent such hunger, through charities and welfare packages, necessity ought not to be allowed as a defence to hunger, to prevent malnutrition from arising.

When is it necessary and justifiable to steal food from another?

There are few situations, if any, when it is necessary or justifiable.

Perhaps, when  breakdown of family-life, an absence of community, no job, no charity, and no welfare benefits exist: Or when there is a total breakdown of Society and Government, might it  be necessary to take food, or else face the prospect of malnutrition and death.

Thankfully, we have not reached that stage in England. There was a poignant moment during the London riots, when a young lady walked out of a ransacked shop with a box of nappies. Was that necessity? Could she have received nappies from elsewhere? Did things get so bad in broken Britain, that this young lady had no choice?

So long as charity exists, and we take time not to ignore those in need of help, through hunger, debt, or medical emergencies, all of these scenarios could have been avoided. One should not take the view that such a concern is only for the Local Authority and Government. It is, rather, something that we should all be responsible for, to understand that we all have a responsibility to help one another.