Necessity as a Defence to Murder: An Anglo-Canadian Perspective

Date01 August 2014
Published date01 August 2014
AuthorBirju Kotecha
Subject MatterArticles
Necessity as a Defence to Murder:
An Anglo-Canadian Perspective
Birju Kotecha*
Abstract 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 foundations which
are classied either as one of justication or excuse. It is this highly
problematic distinction which will be exposed as not only having been
overlooked in case law but is futile where necessity is considered as providing
a murder defence. Such a theoretical dichotomy does not reect the
competing rights and values present in the case law, and nor does it align
with the decision-making process taken by judges in cases where they
resolve such moral conicts. What is present is a contextual form of necessity
that frames and recognises the circumstances the actors are placed in. The
analysis argues for a recategorisation of necessity into a narrow fact-driven
category beyond the abstract duality of justication or excuse. To support
the view of a situation-led approach, necessity is exposed as omitting a
critical doctrinal element; that of the imminence of harm within a broader
recognition that the situation presents an emergency. Adopting a comparative
perspective, the article analyses why the emphasis placed on the imminence
of harm found in Canadian jurisprudence ought to be reected in English
law. The rationale for this is to fully reect the agony of the circumstances
that underpin the scope of necessity in murder situations and to ensure that
actors in such tragic situations have their rights secured as far as possible,
before allowing the defence to apply. One of the nal implications of the
article is a reconsideration of the relationship between necessity and duress
of circumstances arguing that a reappraisal of their convergence is required.
The article’s argument leaves the juridical precept that duress is not available
as a defence to murder on an insecure foundation and in need of judicial
Keywords Necessity; Justication; Excuse; Emergency; Imminence;
Duress of circumstances
Is it lawful to take life, in order to save the life of another and/or the life of
your own? Perhaps one of the most foundational questions in legal and
philosophical debate, the defence of necessity from the criminal law, is
often seen as providing an answer. Where once it was dened principle
that necessity could not be a defence to murder, it is evidently true that
across a range of contexts, this is highly disputable.1The controversy of
* Graduate Tutor in Law, University of Northumbria Law School; e-mail: birju.kotecha@ I would like to thank Dr Mohamed Bader for his continued direction
and guidance. I am also grateful to Dr Ashley Savage, Emma Smith and, in particular,
Nicola Wake for their comments on earlier drafts of the article. All errors remain my
1 M. Bohlander, ‘Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked
Airplanes—Taking Human Life and the Defence of Necessity’ (2006) 70 JCL 147 and
D. Ormerod, Smith and Hogan’s Criminal Law, 13th edn (Oxford University Press: Oxford,
2011) 371 (hereafter ‘Smith and Hogan’).
The Journal of Criminal Law (2014) 78 JCL 341–362 341
The Journal of Criminal Law
necessity as a murder defence endures because it appears at the cliff edge
of morality’s relationship with criminal law. Traditionally literature has
been relatively sparse because cases where the defence is invoked are rare
and conned to the peculiarities of the context. However, from being
narrow in coverage, the discourse of necessity is signicant insofar as it
forms a doctrinal expression of the relationship between individual
autonomy and the countervailing public good. The competitiveness and
polarity of these values are enshrined in how necessity resolves situations
when it involves the killing of others. Indeed, this moral tension was
present in the case of the late Tony Nicklinson which has given further
renewal to a range of unanswered demands that pertain to its theoretical
base, scope and form. The case has already returned further spotlight onto
necessity, giving renewal to a range of unanswered demands that pertain
to its theoretical base, scope and form.2
This article revisits and critiques the defence of necessity. Its aim is to
clarify and reconceptualise necessity as a defence to murder, arguing that
the defence needs an explicit fact-driven focus. It will do this by critiquing
the existing theoretical dichotomy that sees necessity framed either as a
justication or excuse, and analyse why in such instances, necessity does
not t either mould. A recategorisation beyond such compartmentalising
is required, to one that views necessity with a more pragmatic or contextual
perspective. It lends credence to the argument that the defence should
include an element which emphasises a high degree of imminence of
harm, as seen in Canada, and that is something that current English law
doctrine does not stress. By arguing that the imminence of harm needs
incorporating into the current law, the article’s ambition will be to provide
further evidence that the fusion between necessity, duress and duress of
circumstances is yet even greater.3The effect of the merging will be to
question the common law precedent that duress is not a defence to murder,
as established under RvHowe.4The arguments advanced in the article are
reached through the following sections in the analysis.
First, the article appraises necessity through the leading case of Re A
(Conjoined Twins),5providing the contextual background to the decision
and the key principles of necessity. It will weave analysis of the decision-
making process of judges through a prism of a conict of rights and values.
This will highlight the philosophical pragmatism taken by the court, which
formed the rationale for the adoption of the defence. It is a practical
‘conict of rights-resolving’ approach that ought to be taken when
addressing necessity and murder cases. Secondly, the article demonstrates
2R (on the application of Nicklinson) (AP) vMinistry of Justice [2014] UKSC 38; R (on the
application of Nicklinson) vMinistry of Justice [2013] EWCA Civ 961. See broadly for
commentary: F. Stark, ‘Necessity and Nicklinson’ [2013] Crim LR 949; F. Stark, ‘Necessity
and Policy in R (Nicklinson and others) vMinistry of Justice’ (2014) 18 Edinburgh Law Review
104; and R (on the application of Nicklinson) vMinistry of Justice (2013) 77 JCL 468, case note
by A. Jackson.
3 For a discussion on the overlaps, duplicity and inter-relationshipsbetween the defences
see, e.g., W. Chan and A. Simester, ‘Duress, Necessity: How Many Defences?’ (2005) 16
Kings Law Journal 121; J. Horder, ‘Self-defence, Necessity and Duress: Understanding the
Relationship’ (1998) 11 Canadian Journal of Law and Jurisprudence 143; and C. Clarkson,
‘Necessary Action: A New Defence’ [2004] Crim LR 13 Supp 50th Anniversary Edition.
4RvHowe [1987] AC 417.
5Re A (Conjoined Twins) [2000] 4 All ER 961.

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