Necessity

The concept of necessity has been described in Perka v. Queen as where non compliance with the law is
excused by an emergency or justified by the pursuit of some greater good.

Necessity as an excuse:

The leading case on the topic is R v. Dudley and Stephens. Here the court rejected any defence of
necessity which would permit the killing of the innocent to save one’s own skin. As a result two
shipwrecked sailors who killed and ate the cabin boy after days adrift in an open boat had no answer to a
charge of murder.

Courts are reluctant to provide this defence for two reasons:

1. It would introduce the potential for individual rights to be overridden by collective interests.
2. It would subvert the rule of law since it allows individuals to ignore their legal duty in pursuit of
some supposedly greater good.
 Buckoke v. GLC: It was no answer to a charge of jumping a red traffic light that the
driver was in a fire engine answering an emergency.
 Southwark LBC v. Williams: It was no answer to trespass that the trespassers were
homeless and the building unoccupied. Lord Denning was of the opinion that if the
defence was allowed, floodgates would be opened and some people might also imagine
that they were in need or might invent a need so as to gain entry.

There are, however, several requirements that must be met in order for the defendant to use necessity as a
defence:

 The first requirement is that the defendant must reasonably believe that an actual threat exists.
 Second, the defendant must reasonably believe that the threat he is trying to prevent is greater
than the damage that will result from his actions.
 Third, the threatened harm that the defendant is trying to prevent with his actions must be
imminent.
 Fourth, the defendant can only use the necessity defense if there was no other, less harmful way
to avoid the threatened danger.
 Finally, the defendant will only be able to use the defense if the defendant himself was not at fault
in creating the situation that made it necessary to commit his crime.

Necessity as a justification:

The justificatory form of necessity has been accepted in one restricted context- medical intervention.

 Re F: 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 sterilized. F was incapable of giving valid consent
since she did not appreciate the implications of the operation. The declaration was granted. It
would be lawful for the doctors to operate without her consent.
 St. George’s Health care NHS Trust v, S: The doctors had acted unlawfully by performing the
emergency caesarean on the woman without her consent.
 Re A: According to Sir James Stephen, there are three necessary requirements for the application
of the doctrine of necessity:
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
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