Necessity in English Law - The Principles

The Principles

There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defenses of necessity and duress in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. The general approach was laid down by Lord Denning in Southwark London Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defence because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify burglary to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that

"If the defense of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale."

When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offense charged. This defendant robbed two building societies in order to repay debts. The form of defense was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.