Necessity and murder
| Published date | 01 February 2015 |
| DOI | 10.1177/0022018314564733 |
| Date | 01 February 2015 |
| Subject Matter | Articles |
Article
Necessity and murder
Nathan Tamblyn
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 alternative and hitherto unarticulated defence of necessity latent in the
case law which could be a defence to murder. The defence can be formulated as follows: if a group of
two or more people are virtually certain to suffer death imminently and together, from the same cause,
but one or more could be saved only by killing a particular person in that group, then such killing would
be lawful. (The killer does not have to be one of the group.) Formulating the defence this way also
reveals its underlying justification: if all life is otherwise going to be lost anyway, it is better to save
at least some of that life.
This article begins by showing how this proposed defence of necessity is consistent with the leading
cases and prominent real-life situations. It then differentiates the proposed defence from a defence of
lesser evil necessity.
Consistent with Howe
Let us begin by considering the defence of duress by threats. An example of duress by threats, in circum-
stances broadly similar to the proposed defence of necessity, would be where A threatened to kill B
unless B killed C. However, following R v Howe,
1
duress by threats is no defence to murder. Never-
theless, the proposed defence of necessity, even available on a charge of murder, is compatible with that
state of affairs. We can differentiate the two defences, even in circumstances where both relate to the
defendant killing in order to avoid death.
One familiar way of differentiating the defences is to say that, with duress, the defendant’s otherwise
wrong act is deemed lawful in recognition of the pressure he was under, whereas the essence of a neces-
sity plea is that the defendant did the right thing in all the circumstances. Or to put it another way, duress
Corresponding author:
Nathan Tamblyn, School of Law, University of Exeter, Exeter, Devon EX4 4RJ, UK.
E-mail: n.tamblyn@exeter.ac.uk
1. R v Howe [1987] AC 417 (HL).
The Journal of Criminal Law
2015, Vol. 79(1) 46–54
ªThe Author(s) 2014
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DOI: 10.1177/0022018314564733
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