The purpose of this essay is to explain and critically examine the scope of the defence of necessity and suggest its reform.
Table of Contents
1. Criminal Law
Objectives and Topics
This essay aims to explain and critically examine the legal scope of the defence of necessity within English criminal law, while assessing its limitations and potential for future reform.
- Conceptual distinction between necessity and the duress of circumstances.
- Justificatory vs. excusatory nature of criminal defences.
- Judicial treatment of necessity in cases involving medical intervention and human rights.
- Constraints of the defence regarding murder and attempted murder.
- Case law analysis of necessity in emergency and life-saving situations.
Excerpt from the Book
Criminal Law
The purpose of this essay is to explain and critically examine the scope of the defence of necessity and suggest its reform. At the outset, it should be noted that “necessity relates to a situation where a person commits an offence to avoid a greater evil to himself or another which would ensue from the circumstances in which he or that other are placed.” Although, its operation is limited, “English law does, in extreme circumstances, recognise a defence of necessity”.
Defence of necessity is closely related to the duress of circumstances so “the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts” In R v Martin, Simon Brown J explained that “most commonly [necessity] arises as duress, i.e. pressure put on the accused's will by another's wrongful threats or violence, but it can also arise from other objective dangers threatening the accused or others amounting to duress of circumstances.” Therefore, it might seem that “whether 'duress of circumstances' is called 'duress' or 'necessity' does not matter.” Accordingly, very often, the terms ‘necessity’ and ‘duress’ are used interchangeably.
On the other hand, there are some major differences. Firstly, necessity is a justificatory defence whereas duress is of an excusatory nature. Secondly, duress of circumstances is recognised only where there is a threat of death or serious injury whereas necessity operates to justify an action conducted in the individual’s best interest or where the defendant faces the “naturally occurring disasters, accidents caused by human actors or criminal threats”. Thirdly, where considering necessity, “focus is on the balancing of evils, not on the particular defendant’s condition”. Finally, in terms of duress, the threat must be imminent, whereas “with necessity, the principle is one of ‘necessity, not emergency’”.
Summary of Chapters
Criminal Law: The text provides an overview of the legal definition and operational boundaries of the defence of necessity, contrasting it with duress and analyzing its application in medical and emergency situations.
Keywords
Criminal Law, Defence of Necessity, Duress of Circumstances, Justificatory Defence, Legal Reform, English Law, Medical Ethics, Murder, Euthanasia, Balancing of Evils, Bona Fide, Case Law, Statutory Defence, Legal Liability, Criminal Responsibility.
Frequently Asked Questions
What is the primary focus of this paper?
This essay focuses on the definition, application, and critical examination of the defence of necessity in English criminal law, exploring its boundaries and the need for reform.
What are the core themes covered in this work?
The core themes include the distinction between necessity and duress, the legal requirements for a valid defence, the role of judicial discretion, and the tension between public policy and individual necessity.
What is the main objective or research question of the paper?
The main objective is to clarify the scope of the necessity defence and provide a critical analysis of its limitations when applied to serious criminal offences.
What scientific or legal method is employed?
The paper utilizes a doctrinal legal analysis, examining established case law, statutory provisions, and academic legal literature to evaluate the current state of the law.
What topics are discussed in the main body?
The main body addresses the relationship between necessity and duress, the judicial skepticism toward the defence, its application in medical contexts, and the absolute prohibition of the defence in murder cases.
Which keywords best characterize this work?
Key terms include criminal law, necessity, duress, justification, legal reform, and medical cases.
How does English law distinguish between necessity and duress?
The text notes that while often used interchangeably, necessity is a justificatory defence based on a balance of evils, whereas duress is an excusatory nature triggered by specific, imminent external threats.
Why is the defence of necessity typically rejected in cases of murder?
The courts maintain that every life is equally sacred and that no legal measure exists to determine the comparative value of lives, thus preventing the sacrifice of one person to save another.
What role does 'bona fide' play in medical necessity cases?
In cases such as R v Bourne or Gillick, the actor's 'bona fide' intent is crucial in negating the 'guilty mind' (mens rea), thereby justifying actions that might otherwise be considered criminal.
Does the author suggest that the current legal framework is sufficient?
No, the author highlights the inconsistency in the current application of the defence and argues that it requires reform to provide greater clarity and consistency.
- Quote paper
- Kacper Zajac (Author), 2013, The Scope and Potential Reform of the Defence of Necessity in English Law, Munich, GRIN Verlag, https://www.grin.com/document/353646
