Consider whether the doctrine of necessity is being applied

adequately in criminal law? Discuss the recent decisions in these

respects.
The legal definition of a crime is as such: A crime is an offence against
public law.1 In a crime, there must be two elements that are established, the
actus reus and the mens rea. The actus reus is the prohibited act (guilty act),
while the mens rea is the mental intent of committing a crime. Should the
offence fall under the category of strict liability offences, then there is no
need to prove the mens rea but in other cases, the burden is on the
prosecution to prove both elements of the crime. However, there are
defences that the defendant can use to defend himself, one such defense
being necessity. Necessity is used as a defense that allows an individual to
act in a criminal manner in an emergency to prevent a greater harm from
happening.2 An example of a case would be State v Green, the Missouri
decision where the defendant escaped from prison in order to avoid getting
raped.3

1 The Lectric Law Library, Crime, http://www.lectlaw.com/def/c330.htm,

accessed 30th March 2015
2 National Paralegal, Necessity and Duress,
http://nationalparalegal.edu/public_documents/courseware_asp_files/criminal
Law/defenses/NecessityandDuress.asp, accessed 30th March 2015
3 State v Green [1971] 470 S.W.2d 565
1

i. Evolution of the defense of necessity

A criminal defendant has to be proved guilty beyond reasonable doubt by the
prosecution in order to be convicted of a crime. The defendant may defend
himself based on the discovery that the defendant possibly has a mental
condition, was pressurized into committing the act or acted permissibly. Upon
being convicted, the defendant may use the defense of duress to defend
himself, as he was forced to commit the act. Two types of duress, that is,
threat and circumstances both fall under the category of necessity.
Necessity is a defense that requires a balancing of harms approach.4 To be
able to use the defense of necessity, it must be established and justified that
an individuals wrongdoing was necessary to prevent greater harm. When
compared to the defense of duress of circumstances, there was extreme
pressure in the situation where necessity was used as a defense and the
defendant would have felt that the crime had to be committed in order to
prevent a greater harm from occurring.5
The first case that established the doctrine of necessity was Regina v
Dudley and Stephens (1884). In this case, the defendants were stranded
on a ship, starving, when they murdered a boy and they then ate his flesh, if
not, they would have died of starvation. The question in this case that arose
was: What was the right thing to do, if killing an innocent person was the only

4 C de Than, R Heorton, Criminal Law, (4th edn OUP, Oxford 2011)

5 Ibid.
2

thing that could be done to save other peoples lives?6 The courts held that
the defendants were convicted of murder and were sentenced to death, but
were granted a pardon and served six months imprisonment. Lord Coleridge
CJ stated that killing a defenseless individual is considered murder and
admitted that in this case, it was no excuse, unless the act could be justified
by necessity. While what has occurred does not fall under the defense of
necessity, it is not to be regretted.7
In Richards, 10 July 1986 (HL), Lord Goff made an obiter statement, of
which his views had been developed by Re F [1990] 2 AC 1 (HL) and stated
that necessity did exist and renders what is unlawful to be lawful. The facts of
Re F were in the third category stated by Lord Goff, action taken as a matter
of necessity to assist another person without his consent. In Re F, the
sterilization of a mental person was deemed as acting in her best interest
when she lacked the capacity to consent to the operation though it was in her
best interest.8
However, modern cases would assume that there is a defense. In S
[2009] EWCA Crim 85, it was held that a charge of installing unlicensed
guards to defend individuals under a death threat or injury from a terrorist
attack on an unknown retail location can use necessity as a defense. Also, in
DPP v Hicks, on the 19th July 2002 used the same concept as Hutchinson v
Newbury Magistrates Court (2002) whereby a successful plea needs a

6 Justice Harvard, The Queen vs Dudley and Stephens (1884) (The Lifeboat
Case), http://www.justiceharvard.org/resources/the-queen-vs-dudley-andstephens-1884-the-lifeboat-case/, accessed 2nd April 2015
7 R v Dudley and Stephens (1884) 14 QBD 273
8 M Jefferson, Criminal Law, (11th edn, Pearson 2013) 273
3

logical and reasonable response to the harm that may be inflicted and there
was no other prevention method.
The defense of necessity has evolved to cover drug use, i.e. marijuana
as a method of easing pain from injuries.9 For instance, this is seen in R v
Quayle (2006) 1 WLR 3642 (CA) where the courts sustained that the
defense of necessity did not apply to the use of cannabis to relieve the pains
experienced by the defendant.10
The defense of necessity has also progressed to be used as a choiceof-evils defense, as seen in Jones v Gloucestershire Crown Prosecution
Service [2005] QB 259 (CA) where around an RAF base, two defendants
were accused of multiple offences. They used the defense of necessity but
the courts ruled that defense inadmissible.11
The difference between duress and necessity is that when it comes to a
defense of duress the defendant has a choice of breaking the law or another
person harms him, whereas in the defense of necessity the accused is in a
situation due to natural circumstance, but still in a similar position.12
According to Jeremy Horder in his journal article entitled Self-defense,
necessity and duress: understanding the relationship stated that in cases
regarding necessity the main issue is the moral imperative to act. What is
important is the question if, in the situation and circumstance, it was
necessary to act even if the act may involve the perpetration of harm in order
to avoid a greater harm.13
9 M Jefferson, Criminal Law, (11th edn, Pearson 2013) 274
10 R v Quayle (2006) 1 WLR 3642 (CA)
11 Jones v Gloucestershire Crown Prosecution Service [2005] QB 259 (CA)
12 M Jefferson, Criminal Law, (11th edn, Pearson 2013) 274
13 Ibid.
4

ii. Medical necessity

The core principle of medical necessity is the doctrine of personal

bodily autonomy that guarantees that any medical-related treatment
requires the patients consent. This will also be taken into practice if the
patient is pregnant and the foetus will suffer unless there is treatment
given.14 As an example, in St. Georges Healthcare NHS Trust v S
[1998], the healthcare authorities required the defendant to be hospitalized
if necessary, as she was facing a malfunction in her birthing, but she still
wanted a natural birth. A Caesarean operation was carried out without her
consent. The courts held that as she was of a sound mind, detaining her
under the Mental Health Act 1983, s.2(2)(a) was unlawful.15
14 C de Than, R Heorton, Criminal Law, (4th edn OUP, Oxford 2011) 306
15 St. Georges Healthcare NHS Trust v S [1998] 3 All ER 673, CA
5

However, such decisions would only apply to individuals of a sound

mind who are capable of making their own decisions, unlike in cases of
incompetence due to illness or medication e.g. Re W [1992]16, or in cases
involving a minor e.g. Re R [1991]17. Re W [1992] is a case regarding the
treatment of anorexia nervosa, suffered by a 16-year-old girl. The courts held
that the hospital should treat the patient as anorexia nervosa caused the
patient to be incapable of making decisions.18 Re R [1991], the patient was
a girl who did not comprehend the depth of her psychiatric condition and did
not fully understand the need for medication. The courts ruled that she was
not Gillick competent (a term we will get into shortly) and stated that she
could not refuse treatment.19
Mental incapacity is also another element that allows the defense of
necessity to be used without consent. One such example is in the case of F v
West Berkshire Health Authority.20 In this case, the House of Lords
allowed the sterilization of a sexually active mental patient who had the
mental age of a five year-old. This was so because said patient was not
capable of consenting to the operation and the health authorities stated that
pregnancy would be a negative impact to her psychiatric health.21 This
decision was mostly based on necessity, but the judges distinguished the
16 C de Than, R Heorton, Criminal Law, (4th edn OUP, Oxford 2011) 306
17 Ibid.
18 Re W [1992] 4 All ER 649 CA
19 M Smith, A minors health rights,
http://www.academia.edu/359922/A_minors_right_to_refuse, accessed 5th
April 2015
20 C de Than, R Heorton, Criminal Law, (4th edn OUP, Oxford 2011) 306
21 SixthFormLaw, Cases-duress-duress of circumstances,
http://sixthformlaw.info/02_cases/mod3a/cases_62_gen_def_duress_of_circs.ht
m#F%20v%20West%20Berkshire%20Health%20Authority%20(1989)%20HL,
accessed 5th April 2015
6

defense differently. Lord Brandon devised his judgment stating that treating a
dissenting patient was only lawful if said treatment improves life quality or
can save their lives. Lord Goff, however, concentrated more on civil law cases
of necessity and established, inter alia, that in necessity situations, the action
that is taken must be what a reasonable person would do in such
circumstances and said person must act in the interests of the assisted
person.
In Gillick v West Norfolk Health Authority [1985], a doctor
provided contraceptives to a 16 year-old girl. The House of Lords held that a
doctor can provide contraceptives to an underage girl to prevent damages to
her health even if it meant that it would allow for unlawful sexual intercourse
( s.5 of the Sexual Offences Act).22
The House of Lords applied the defense of necessity in R v
Bournewood Community and Mental Health NHS Trust [1998]. The
House of Lords recognized and justified the act of informally detaining a
mentally impaired patient who was a threat to his self. The doctrine of
necessity was cited, with Lord Goff stating that the actions were taken in the
best interests of the patient.23
In R. (Nicklinson) v Ministry of Justice [2012], the Divisional Court
stated that the defense of necessity could not be used in the event that an
individual assists another to end his life. The Courts distinguished the
difference between a doctor who is seeking to end life positively, and will not
22 SixthFormLaw, Cases-duress-duress of circumstances,
http://sixthformlaw.info/02_cases/mod3a/cases_62_gen_def_duress_of_circs.ht
m#F%20v%20West%20Berkshire%20Health%20Authority%20(1989)%20HL,
accessed 5th April 2015
23 M J Allen, S Cooper, Elliot and Woods cases and materials on criminal law,
(11th edn, Sweet and Maxwell 2010) 276
7

incur any criminal liability, as seen in Airedale NHS Trust v Bland.24 This
case relates to Tony Bland who was in a persistent vegetative state for three
years and survived on artificial nutrition. His mother and the doctors applied
for a declaration to discontinue all life-sustaining treatment. The courts
granted the application for the declaration.25 The House of Lords recognized
and distinguished that in this case, there was the intention to cause death.
Lord Goff, in the case of Bland, stated that there was no benefit in sustaining
treatment for Bland as there was uncertainty as to whether or not the
treatment will improve the patients condition.26
The defense of necessity, however, does not apply to medical
procedures carried out by non-qualified individuals even though it is
beneficial to the patient. As an example, in R v Quayle [2005], the
defendant was held responsible under the Misuse of Drugs Act 1971 for using
cannabis as a pain reliever as the defendant was experiencing chronic pain.
The courts held that although this method of medication was effective, the
person carrying it out was not qualified and also this method of medication
was illegal.27
Though the courts have not expressed this in an outright manner, the
courts seem to have distinguished and recognized the defense of necessity
and its correlation to positive killing by doctors. A doctor is not held liable
for murder if he takes away his patients life if, in the circumstances, killing

24 Ibid.
25 Airedale NHS Trust v Bland [1993] AC 789 House of Lords
26 e-lawresources, Airedale NHS Trust v Bland [1993] AC 789 House of Lords,
http://www.e-lawresources.co.uk/Airedale-N-H-S--Trust-v-Bland.php, accessed
5th April 2015
27 C de Than, R Heorton, Criminal Law, (4th edn OUP, Oxford 2011) 307
8

the patient is able to relieve pain. However, there is leeway for a doctor to be
negligent and can be convicted for manslaughter.28

iii. Is the defense of necessity adequately applied in criminal law?

Case study: Airedale NHS vs Bland [1993] AC 789 House of Lords
Tony Bland was reduced to a persistent vegetative state (PVS) after
getting involved in the Hillsborough disaster. He was then on life-support (ie.
28 C M V Clarkson, H M Keating, S R Cunningham, Criminal Law (7th edn,
Sweet and Maxwell 2010) 372
9

Internal feeding) because while his brain stem was functioning, Tony Bland
remained unconscious and did not have any hope at recovering. Airedale NHS
Trust Hospital, with parental consent, signed a declaration to cut off all lifesupport lawfully.
The decision was granted in the court of law.29 The House of Lords, two out of
five judges held that parliament should legislate for future cases and also
held that this case should not be made precedent to other cases. Sir Stephen
Browne, president of the High Courts family division and three other Appeal
Court judges held that removing life-support (ie. Hydration, nutrition) in this
case would not be unlawful.30

In terms of morals, the activity in Bland (removal of feeding tube and

other forms of life-support) can be considered morally accurate as it allows
Tony Bland to die with dignity as per his parents wishes. Lord Goff, in his
29 Airedale NHS Trust v Bland [1993] AC 789 House of Lords (hereinafter
Bland)
30 British Medical Journal, Law lords rule that Tony Bland does not create
precedent, [1993] (306) BMJ, accessed 10 June 2008
10

judgement, referred to Re F, whereby the case involved the sterilization of a

mentally handicapped woman in which the House of Lords held that a doctor
may treat a patient in accordance to the patients best interests. Lord Goff
held that the same principle can be governed in the Bland case.31 Also,
referring to the article Is Hurting People Wrong? by academic William Wilson,
he stated that theories of criminal law must be structured to protect
individual liberties even though such liberties cannot be exercised by oneself,
allowing doctors to act on behalf of the patient in Bland. The state that Bland
was in was not a benefit to Bland, which was also another reason for the
decision in this case.

The activity in Bland can also be considered immoral as the activity

restricts the right to survival (sanctity of life) which is stated in ECHR Article 2
right to life.32 The cause of death in Bland is stated as a deliberate
induction of kidney failure on 3rd March 1993.33 The activity in Bland removes
and goes against the right to life as stated in Art. 2 of the ECHR as Bland
was not on a ventilator (he was breathing on his own) and Bland was
described as neither dead nor dying as Bland could breathe and digest food
normally. Therefore, the act of removing hydration and assistive nutrition
from Bland may prove to be immoral.

31 Airedale NHS Trust v Bland [1993] AC 789 House of Lords

32 European Council on Human Rights, European Convention on Human
Rights http://www.echr.coe.int/Documents/FS_Life_ENG.pdf, accessed 5th
April 2015
33 Society for the Protection of Unborn Children, The case of Tony Bland
https://www.spuc.org.uk/about/no-less-human/Bland.pdf, accessed 5th April
2015
11

The withdrawal and cessation of medical treatment is an omission

because the doctors withdrew treatment (artificial feeding and hydration) for
Bland. By withdrawing treatment for Bland, and seeing as how Bland is not
a competent patient that is capable of making his own decisions, and the
doctor removing artificial hydration was carrying out the act of assisted
suicide. However, this will not be the case if said patient was competent and
requested to be taken off treatment that may result in death (Re B Consent to
treatment 2002) in which case the doctor would not have committed assisted
suicide. Even if the said patient is competent, he/she cannot request for a
positive act to take his/her life away as it is against s2 of the European
Convention on Human Rights, right to survival. However, in the event that
the sustainment of life is not considered in the patients best interests, for a
patient in a PVS (eg. R v General Medical Council) then there are
exceptions to the general rule. Also, in the case of Bland, there are other
factors that can be taken into consideration. When looking at the Hippocratic
Oath, one article states that sick patients must be taken care of adequately
while keeping the patients family and economical stability in mind, and in
Bland, keeping him in a PVS will cause a loss of resources and is not in the
best interests of potential patients who are waiting in line for similar
treatment from the doctor. Therefore, using the Hippocratic Oath as a moral
guide, it was in Blands best interest to be taken of artificial assistance as he
would be in a PVS for an unknown period of time. As hospitals generally
experience a lack of resources, taking Bland off artificial assistance would
allow doctors to use the limited resources that they have and allocate it for
the next patient in line for treatment.
12

In Blands case, there is a question on whether the defence of

necessity could be applied to prevent the defendants from being charged
guilty.

Referring to Re A (2001)34, Mary and Jodie35 were twins joined at the

pelvis. Mary was the frailer of the two and was akin to a parasite as she
would extract nutrition from Jodie. Should the twins be separated, Jodie would
have a higher chance of living, but this would also cause Jodies death. The
doctors applied for a declaration to the courts and the courts granted the
application on the grounds that the operation would be an omission instead
of a positive act. It was stated that Marys death was not the main intention
of the doctors.

A choice has to be made between two evils in Re A:

i)
ii)

operate on one twin and let the other twin die

not operate them at let both die.

To operate and let one twin die, there is said to be specific intent for
Marys death. However, Jodie too has the right to life, the right to have
one's own body whole and intact and to take decisions about one's own
body. Due to an unfortunate tragedy, both were divested of their bodily
integrity and autonomy. It was presumed that an operation to separate
them would be in each of their advantages, that Jodie would live and
Mary, the weaker of the two, will not suffer neither will she cause Jodie
34 Re A [2001] 2 WLR 480
35 Real names Rosie and Gracie Attard
13

to suffer, in which case will lead to the imminent death of both twins.

Conclusion
In my opinion, there is an adequate use of the defense of necessity as
the court is able to distinguish between various facts of different cases, and
how necessity applies to each case. Though it is not acknowledged
expressively, it can be seen that there are cases whereby the courts held that
necessity, as a defense, could not be used eg Quayle. It is a good thing that
the British Constitution is uncodified and allows for flexibility, as it allows for
common law to grow and evolve, as in the cases of necessity stated earlier in
this paper. In cases of medical necessity, the courts have distinguished that,
in cases between two evils, there must be no specific intent of murder, as
seen in Bland and Re A. Therefore, restating my opinion, I would agree that
there is an adequate use of necessity in the law, and there is no misuse of
the doctrine of necessity as the courts are able to differentiate between the
facts of various cases.

14

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