Written by Sean McCaughey (A2)
Introduction
When using the defence of necessity a defendant is claiming they did not want to commit the crime in question but were forced to do this by the circumstances or by other people. The defence, if accepted, is therefore justifying the commission of a crime. For this reason the defence is under strict limitations. The initial decision that necessity is not a defence to murder came in the leading, now notorious, case of Dudley and Stephens 1884 . There are two other defences connected to necessity, duress of threats and duress of circumstances. These will also be looked at with regard to necessity can never being a defence for murder.
The General Rule
As a general rule necessity is not accepted as a defence to a criminal charge. The defence is therefore very narrow but is surrounded by uncertainty. Indeed the Law Commission highlighted the uncertainty in its draft Criminal Code, stating 'We are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defence' . It can be seen the Law Commission would rather sit on the fence than define the circumstances where necessity should be accepted as a defence, this has been left for the courts to decide. The first part of the statement does indicate that they approve of the ratio in Dudley and Stephens 1884 , that necessity is not a defence to murder.
Over the years, instances have arisen where the defence of necessity has been widened as it has been accepted and the defendant(s) given a full acquittal. One example of this is the case of Bourne 1939 where the defendant was successfully acquitted of carrying out an illegal abortion as the mother, a 14 year old girl, who had been raped, would be endangering her life by giving birth and the abortion was therefore 'necessary'. There has not been a case where necessity has been accepted as a defence to murder.
Dudley and Stephens 1884
This is the leading case in the defence of necessity. The ratio makes it clear that necessity is not a defence to murder. The defendants and a cabin boy, one Parker, were cast adrift as a result of a shipwreck. They ran out of food. The cabin boy fell ill, and the defendants killed and ate him, to save themselves from starvation. They were rescued shortly after by a passing boat. One of them admitted what they had done and they were subsequently charged with murder. The jurors recognised the difficulty of defendants' dilemma, realising their early rescue was very fortunate and that they would probably have died if they had not committed the act. They also acknowledged the boy was likely to have died anyway although stated there was no greater necessity to kill him rather than one of the other men.
The Divisional Court refused to accept the defence in these circumstances although Lord Coleridge expressed sympathy with the defendants' situation. The judges stated the defendants' had committed wilful murder and that the facts of the case provided no legal justification and that they were unanimous in their special verdict. Incidentally the defendants' sentence was reduced from hanging to six months imprisonment, without hard labour.
The courts were wary of allowing necessity as a defence to murder, in case it resulted in the defence being exploited in future murder cases. The extreme circumstances faced by the defendants in Dudley and Stephens 1884 has made it impossible for necessity to ever be a defence to murder as the circumstances of the would-be defendant(s) would have to be greater than those in Dudley and Stephens 1884 . How can another defendant(s)' necessity be greater than being faced with the decision of committing murder for food to survive or dying. The answer is it cannot; therefore necessity cannot be a defence to murder.
Over-Ruling Dudley and Stephens 1884 ?
For necessity to be a defence to murder the case of Dudley and Stephens 1884 would have to be overruled. This will not happen as the courts are still weary necessity could 'be made the legal cloak for unbridled passion and atrocious crime' to quote Lord Coleridge, his view is reinforced by the Law Commission's reluctance to define the circumstances where necessity should be accepted as a defence in its draft Criminal code.
The case of Buchoke v Greater London Council 1971 illustrates the courts refusal to overrule Dudley and Stephens 1884 and widen the defence of necessity sublimely. Lord Denning decided the defence of necessity was not even available for fire-fighters and other rescue services, if they broke the traffic laws whilst in the execution of their duty; racing to a scene of danger. In his obiter dicta he revealed he felt that they should however be praised for their efforts and he hoped they would never be prosecuted.
Cases Where Necessity Has Been Allowed As A Defence
Firstly it must be pointed out that these cases are civil cases and therefore do not overrule Dudley and Stephens 1884 and that they were decided on the balance of probability and not beyond all reasonable doubt as in criminal cases, Woolmington v DPP .
In Re F (Mental Patient: Sterilisation) 1990 West Berkshire Health Authority successfully gained a declaration that sterilising a patient suffering from a severe mental disability, with the permission of her mother, would not be unlawful. The girl had formed a sexual relationship with another patient and it was thought a pregnancy would have severe consequences for her mental health and therefore it was necessary for the sterilisation.
The case of Re A (Children) 2000 was more significant and received heavy media coverage, putting added pressure on the Court of Appeal to reach the right decision. Jodie and Mary were conjoined twins. Mary was surviving of blood being pumped through to her from Jodie via a common aorta. If this continued both the twins would die as Jodie would not be able to support them both. Doctors argued it was necessary to separate the twins to save the life of Jodie, even though this would undoubtedly result in Mary's death. The Court of Appeal decided the operation would be lawful, against the wishes of the parents, in a unanimous decision. The judges reached their verdicts through different paths and it is Lord Justice Brooke's path that is significant when arguing that necessity can never be a defence to murder. It is necessity that Brooke believed was the defence that made killing Mary, in order to save Jodie, lawful. He believed that the three requirements for its use had been met. These were laid out in 1887 by Lord Justice Stephen.
The facts of this case are very similar to Dudley and Stephens 1884 and, as the defence of necessity is allowed here, it would suggest Dudley and Stephens 1884 has been overruled. This is however incorrect as this is, as previously pointed out a civil case, also the doctors applied to the courts for a lawful declaration prior to killing Mary unlike in Dudley and Stephens 1884 , although this would have been impossible for them.
Dudley and Stephens 1884 is therefore still the case the courts are bound by and therefore necessity is not allowed as a defence to murder. There is however confusion amongst lawyers surrounding the case of Re A (Children) 2000 , indeed Diana Roe, a respected legal author, appears to be of the belief that this case now has a greater influence on the courts than Dudley and Stephens 1884 .
Necessity and Duress of Circumstances and Duress of Threats
Duress of Threats is available as a defence if the defendant is forced to commit a crime because another person is forcing him to or threatening him. It should be available when the accused has been subjected to 'threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance', AG v Whelan 1934 . This can be dissected to mean if another person made it necessary for the accused to commit the crime. In Graham 1982 a test was laid down to establish whether duress was available as a defence. Limitations have however been placed on where duress may be used as a defence. These include those established in Fitzpatrick 1977 and in relation to murder Abbott 1977 .
In Abbott the Privy Council ruled duress was not available as a defence to murder. This was affirmed in the case of Howe and Bannister 1987 .
Duress of Circumstances is a variation on the defence of Duress of Threats and also does not provide a defence to murder as it has had the same limitations imposed on it as Duress of Threats. This was established in the cases of Conway 1988 and Martin1989 .
Reform of Necessity
There are currently no plans to reform the law on necessity. This again confirms that necessity will never be a defence to murder. In 1977 the Law Commission had wanted to remove the defence entirely, if this had happened then it would have been one hundred percent impossible for necessity to be a defence to murder as it would not have existed. This standpoint faced heavy criticism and the Commission subsequently changed its mind. Although there have been previous calls for the defence to be put into statute the most recent recommendation from the Law Commission, in 1993, is that it remains common law.
Conclusion
It can be concluded that the statement 'Necessity can never be a defence for murder' is true. The case of Dudley and Stephens 1884 has been continually upheld over the last one hundred and twenty years and has remained binding precedent despite various challenges in latter cases. The reason it has not been overruled is the reason it never will be, the courts are to concerned it could 'be made the legal cloak for unbridled passion and atrocious crime'.
Where necessary the courts have been able to distinguish from Dudley and Stephens 1884 such as in the civil case of Re A (Children) 2000 , which would not have set a binding precedent anyway.
The defences of duress of threats and duress of circumstances have also been prevented from effectively providing necessity as a defence to murder through the limitations imposed on them.
Any reform proposals have usually suggested narrowing the defence of necessity, not widening so there is no room for it to be allowed as a defence to murder through the back-door, so to speak.
The courts will always find away of maintaining justice without overruling Dudley and Stephens 1884 preventing necessity from ever becoming a defence to murder. Indeed they hope in many cases that could challenge it, that the defendant would never be prosecuted as stated in the obiter dicta of Buchoke v Greater London Council 1971 .
Sean McCaughey
March 2004.