Was that really necessary?

Necessity has long been considered one of the abstruse curiosities of English law, and the precise extent of the doctrine remains uncertain (In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, per Brooke LJ). It has loitered within the obscurities of the common law since its early recognition in the 16th century (Reniger v Forgossa (1552) 1 Plowd 1). Hale sought to restrict the availability of the necessity plea, stating that: ‘If a person, being under necessity for want of victuals or clothes, shall … clandestinely and animo furandi siea another man’s goods, it is a felony and a crime by the laws of England punishable with death.’

Glanville Williams submitted that a defence of necessity is recognised by English law, arguing that the ‘peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision.’ A plea of necessity has the potential to render lawful, conduct, which involves a violation of legal rubric. It is a justificatory defence, but could be described as a ‘balanceof-evils test’ . Should such a plea be available to a defendant who, when faced with a choice between two possibilities, succumbs to one which involves such violation? Under what circumstances should society accept a justification or an excuse for their actions?

Professors Simester, Spencer, Sullivan and Virgo conclude that Hale’s early rejection of necessity was driven by an understandable reluctance to allow individuals to be the judge of when to dispense with the letter of the law. In Southwark LBC v Williams 1971 Ch 734, 740, Edmund Davies LJ said:

The law regards with the deepest suspicion any remedies of self-help , and permits these remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear – necessity can very easily become simply a mask for anarchy.

Case-law

In the famous case of Dudley and Stephens (1884) 14 QBD 273, where after becoming shipwrecked Dudley and Stephens killed and ate a companion to keep themselves alive. Subsequently, they were convicted of murder. Lord Coleridge C J spoke in terms of both justification and excuse asking:

Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured?

He appears to have held that there could be no defence to the charge unless the defendants were actually justified in doing what they did.

Now it is admitted that the deliberate killing of this unofflending and unresisting boy was clearly murder, unless the killing can be justified by some well recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’ . But the temptation to the act, which existed here, was not what the law has ever called necessity.

In R v Howe and Bannister [1987] AC 417, the court was concerned with circumstances of duress, not with necessity; however, it held that the same principles applied to both defences.

The justification for allowing a defence of duress to a charge of murder is that a defendant should be excused, who killed as the only way of avoiding death himself or preventing the death of some close relation such as his own well-loved child. This was essentially the dilemma, which Dudley and Stephens faced and in denying their defence the court refused to allow this consideration to be used in a defence to murder. If that refusal was right in the case of Dudley and Stephens it cannot be wrong in the present appeals (per Lord Mackay).

 … English law is left … reflecting on what circumstances should support a justificatory defence of necessity

On 6 March 1987, the Herald of Free Enterprise ferry capsized moments after leaving the Belgian port of Zeebrugge, killing 193 passengers and crew. During the inquest, in October 1987, into the deaths, evidence was given by a passenger that he and dozens of others were in the water in danger of drowning, but they were near the foot of a rope ladder up which they might climb to safety. However, on the ladder, petrified with cold or fear was a man unable to move up or down. No one could get past him. After some 10 minutes of shouting at him to no effect, the passenger instructed another to push the man off the ladder. The man was pushed from the ladder and never seen again. Many were then able to climb up the ladder to safety. It does not seem apparent from the transcript that the passenger had been warned that this evidence might amount to an admission of murder.

The coroner said: ‘I think we need at least to glance in the direction of murder’ . However, he then went on to say that it was not known whether the man on the ladder survived, and there must be clear proof that someone was in fact killed: ‘but even if there were, I would suggest to you that killing in a reasonable act of what is known as self-preservation , but that also includes, in my judgment, the preservation of other lives, such killing is not necessarily murder at all’ .

However, if there was evidence that the man was drowned as a result of being knocked off the ladder, there is no authority for the proposition that this was a lawful thing to do. On the contrary, such authority as exists is to the effect that the killing of one person to save the lives of others cannot be justified or even excused. Professor John C Smith observed: ‘Can it really be the law that all those people were under a duty to die, together with the man on the ladder, when they could escape by knocking him off?’

In re A (Children) (Conjoined Twins: Surgical Separation) (above), Brooke LJ relied on Dudley and Stephens and invoked necessity as a defence. However, he drew on a version of necessity that made it permissible to offend where and because ‘on a choice of two evils the choice of avoiding the greater harm was justified’ . This version was that of Sir James Stephen, who attempted a description of the doctrine of necessity in these terms:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided (Digest of the criminal law, pp9–11 ).

‘Jodie’ and ‘Mary’ were conjoined twins, who were joined at the lower abdomen. Mary was only alive because a common artery enabled her sister to circulate blood for both of them. Separation required the clamping and severing of that common artery resulting, within minutes, in the death of Mary. If the operation did not take place, both would die within three to six months. The conclusion was that no crime would be committed when, in weighing the rival harms so as to conclude that operating, and thereby killing Mary was justified Brooke LJ seems to take a utilitarian approach.

In giving the judgment of the Court of Appeal in Martin [1989] 1 All ER 652 p653–4 , Simon Brown J stated:

English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called duress of circumstances. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: … was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; … if so, would a sober person of reasonable ÿrmness , sharing the characteristics of the accused, have responded to that situation by acting as the accused did? If the answer to both those questions was ‘yes’ , then the jury would acquit; the defence of necessity would have been established.

Martin had pleaded guilty to driving while disqualified, after the judge had held that a defence of necessity, arising out of the circumstances Martin alleged, was not open to him. The Court of Appeal held that the judge’s ruling had plainly preempted a viable defence, which might not have succeeded, but it should have been left to the jury. Martin’s conviction was quashed.

Law reform

In 1974, a working party of the Law Commission proposed that a rule be adopted depending upon a ‘balance of harms’ test, but recommended that the harm avoided must be out of all proportion to that actually caused by the defendant’s conduct. In 1977, the Law Commission retreated from its propositions, recommending that there should be no general defence of necessity. However, 1985 saw the commission consider recommendations from leading academics that the defence of necessity should remain a matter of common law, with the courts retaining the power to develop or clarify the defence. Nonetheless, common law has, for epochs, stated that necessity is not a defence to murder because a person who takes the life of another to save their own cannot claim that they chose the lesser of two evils (see Howe (above)) . Anxiety rests with the potential consequences of permitting individuals to judge when the letter of the law can be superseded. In R v Perka [1984] 2 SCR 232, 13 DLR (4th) 1, Dickson J commented:

No system of positive law can recognise any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value. To hold that ostensibly illegal acts can be validated on the basis of their expediency, would import undue subjectivity into the criminal law.

So, it seems that English law is left lingering and reflecting on what circumstances should support a justificatory defence of necessity.