Discuss the operation of defence of necessity in England and Wales. The necessity defence is a complete defence1 which protects an accused who was compelled to break the law in order to avoid an even worse consequence2. 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 successfully3. 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.4 With duress, you act against your own will, but for a greater power making you do something you do not want to do. However, the courts have been reluctant to recognise the defence of necessity. In Dudley and Stephens 18845, A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. The Divisional Court held that that act was not done under a threat and therefore the defendants were found guilty and charged with murder. This shows that the court was not prepared to allow the defence of necessity. This restrictive approach to a defence of necessity may also be seen in Southwark v Williams 1971 where Lord Denning was concerned that people would use the defence too much, e.g. if they were hungry it would be necessary for them to steal food. In Southwark London Borough Council v Williams (1971)6, a family that was evicted from an empty council house could not plead the defence of necessity in that the members would be homeless if they were not allowed to squat. In relation to road traffic offences, the court in Buckoke v GLC7 stated that if the driver goes through the red traffic lights in order to save the life of a human being, he may have the defence of necessity. In relation to Offences against The Persons, necessity may be a defence but it is limited8. For example, in Re F9, 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. Hence, it is submitted that it is lawful to carry out sterilization operation on a mental patient due to the risk that she would become pregnant. In R v Bourne 193910, A 14 year old girl was raped by five soldiers and became pregnant as a result. An eminent gynaecologist performed an abortion on her and was charged under section 58 of Offences Against The Person Act 195811. He was acquitted. The jury found that the operation was performed in good faith for the purpose only of preserving the life of the girl. The surgeon had not got to wait until the patient was in peril of immediate death, if he was of opinion that the pregnancy would make the patient a physical and mental wreck. Although the judge in this case did not use the word 'necessity, Lord Denning in London Borough of Southwark v. Williams12 stated it was. Although the defence of necessity is to be allowed in such instance, it is no longer a good law as it is now governed under the Abortion Act 1967.13 Re A14 is an interesting case because it conflicts with the...
Bibliography: Criminal Law Text, Cases and Material, Oxford 12th Edition 2013
Jacqueline Martin, Tony Storey, Unlocking Criminal Law (4th edition Routledge 2013)
R v dudley and stephens (1884) 14 qbd 273
Southwark London Borough Council v Williams (1971) 2 AER 175
Buckoke v GLC  Ch 655
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