Defence of Necessity in UK Law

Leading Cases
  • R v Martin (Colin)
    • Court of Appeal (Criminal Division)
    • 29 Novembro 1988

    The principles may be summarised thus: First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon 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".

    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: first, 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?

  • R v Willer
    • Court of Appeal (Criminal Division)
    • 25 Fevereiro 1986

    Returning to how the appellant came to change his plea, one begins with the reasons advanced by the assistant recorder for declaring that the defence of necessity was not available to the appellant.

  • R v Howe; R v Bannister; R v Burke; R v Clarkson
    • Court of Appeal (Criminal Division)
    • 27 Janeiro 1986

    It seems to us that it would be a highly dangerous relaxation in the law to allow a person who has deliberately killed, maybe a number of innocent people, to escape conviction and punishment altogether because of a fear that his own life or those of his family might be in danger if he did not; particularly so when the defence of duress is so easy to raise and may be so difficult for the prosecution to disprove beyond reasonable doubt, the facts of necessity being as a rule known only to the defendant himself.

  • Nicklinson v Ministry of Justice [QBD]
    • Queen's Bench Division
    • 12 Março 2012

    The first declaration is sought on the basis that the common law defence of necessity is available to a charge of murder in the case of voluntary active euthanasia and/or to a charge under section 2(1) Suicide Act 1961 in the case of assisted suicide provided that: (a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; there are no alternative means available by which his suffering may be relieved; and he has made a voluntary, clear, settled and informed decision to end his life; (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient's suffering outweighs his or her duty to preserve life.

  • R v Denton
    • Court of Appeal (Criminal Division)
    • 06 Fevereiro 1987

    The appellant did not assert that he had to take risks of causing harm to others to escape from his pursuers or that he had to drive recklessly or that he did not give the nature of his driving a thought. In our view such assertions exclude any possible defence of necessity, even assuming there is such a defence The necessity, if any, was to drive, not to drive recklessly.

  • DPP for Northern Ireland v Lynch
    • House of Lords
    • 12 Março 1975

    The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.

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Legislation
  • Defence Act 1842
    • UK Non-devolved
    • 1 de Enero de 1842
    ... ... or Owners thereof, or of any such Person or Persons as aforesaid, acting for or on the Behalf of the Owner or Owners thereof, unless the Necessity or Expediency of taking the same shall be first certified by the Lord Lieutenant, or Two of the Deputy Lieutenants, or by the Governor or Two Deputy ... ...
  • Common Law Procedure Act 1852
    • UK Non-devolved
    • 1 de Enero de 1852
    ... ... Affidavits accounting for the Nonappearance, and disclosing a Defence upon the Merits. S-XXVIII ... Judgment for Nonappearance where the Writ ... of his Claim as in a Particular of Demand, so as to prevent the Necessity of an Application for further Particulars ... 50 Principal and Interest ... ...
  • Taxation Act 1798
    • UK Non-devolved
    • 1 de Enero de 1798
    ... ... and necessary War in which we are engaged, for the Defence and Preservation of your Majesty's Crown, ... and of the Religion, Laws, ... raise a provisional Force of Cavalry, to be embodied, in Case of Necessity, for the Defence of these Kingdoms ... , or by virtue of another Act, ... ...
  • Terrorism Act 2000
    • UK Non-devolved
    • 1 de Enero de 2000
    ... ... (2) It is a defence for a person charged with an offence under subsection (1) to prove—(a) ... ...
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Books & Journal Articles
  • Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked Airplanes—Taking Human Life and the Defence of Necessity
    • No. 70-2, April 2006
    • Journal of Criminal Law, The
    Necessity is not a defence to murder. This principle has been repeated ever since R v Dudley and Stephens. Behind the arguments put forward in the debate lie the sanctity of life, the idea that one...
  • Necessity and murder
    • No. 79-1, February 2015
    • Journal of Criminal Law, The
    This article argues that there is an alternative and hitherto unarticulated defence of necessity latent in the case law which could be a defence to murder.
    ... ... School of Law, University of Exeter, Exeter, Devon, UK Abstract This article argues that there is an alternative and hitherto unarticulated defence of necessity latent in the case law which could be a defence to murder. Keywords Necessity, duress, murder This article argues that there is an ... ...
  • Necessity as a Justification in Re A (Children)
    • No. 68-5, October 2004
    • Journal of Criminal Law, The
    In criminal law theory, it is common to distinguish between the defence of necessity as a justification and the defence of necessity as an excuse. However, it is sometimes said that English law doe...
    ... ... Necessity as a Justification in Re A (Children) Itzhak Kugler* Abstract In criminal law theory, it is common to distinguish between the defence of necessity as a justification and the defence of necessity as an excuse. However, it is sometimes said that English law does not clearly ... ...
  • Necessity as a Defence to Murder: An Anglo-Canadian Perspective
    • No. 78-4, August 2014
    • Journal of Criminal Law, The
    The article explores the formulation of the criminal defence of necessity in the context of murder cases. The discussion will provide a medium through which to critique necessity's theoretical foun...
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Law Firm Commentaries
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