Defence of necessity

Subject: Defence of necessity
Replies: 11 Views: 1484

vamp.boy 25.04.19 - 12:10pm
Essentially, it's about the defendent having committed an offence based on the situation he is in that compelled him to choose the lesser of the two evils, should it be allowed?
The English courts have differing judgments and in most cases they have been hesitant to apply it. I find it most interesting in cases of assisted suicide and euthanasia where the prospect of such defence is likely to be used.

In the case of R V nickling, a man was paralysed all the way from his eyelids down and lead a harsh existence. He felt his article 8 Echr rights, (right to family life) were being violated. The court held that anyone who assisted him in the act would be criminally liable and such defence would be unsuccessful.

In the case of Airedale NHS vs brand, the court went on to say that the defence of necessity could be used if the doctor omitted to treat a patient if it was deemed to be in his best interest and any continued treatment would be of no benefit to him.

This defence was further allowed in the case of Re A, wherein a mother gave birth to a set of conjoined twins and the doctors stated that the weaker twin would inevitably die, and yet if they were not separated, the other twin would die as well, the doctors against the consent of the parent obtained a court order to continue the operation based on this very defence whereby the court states that 1. It would be justified if there was necessity to avoid an irreparable evil. 2. No more than what is necessary was inflicted to achieve the purpose. 3. the evil inflicted is not disproportionate to the evil prevented.

In the case of Re f, the court even allowed the sterlization of a mental patient who was found to be having sex with another patient at the institute, fearing she would get pregnant, the court stated that the sterlization was justified on such defence as she was not able to appreciate the nature of the conduct and give valid consent and it was in her best interest. * +

vamp.boy 25.04.19 - 12:14pm
Yet in r v dudley and Stephens, this defence was rejected after two men ate a boy after they were stranded in the middle of ocean on a boat, and they thought the best course of action would be to eat the boy.

The courts generally seem to hold the opinion that allowing such a defence would pave way for a utilitarianist approach wherein people would maximize benefits from their own capacity and it might even justify murder in many cases, while chaos and anarchy from such a defence may insue.

After all of this rant which totally has nothing to do with me revising for my criminal law exam, do you think the defence should generally be allowed? And secondly do you think it should be allowed for cases involving assisted suicide?

Sorry for the rant.

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vamp.boy 25.04.19 - 12:18pm
R v nicklinon**. So many grammatical errors!

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freshdeadlyroses 25.04.19 - 12:23pm
I think.. now is when I ask the teacher if I can go to the toilet.

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vamp.boy 25.04.19 - 12:29pm
This explains why students seem to only have a full bladder when it's my class.

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freshdeadlyroses 25.04.19 - 12:30pm
What did the parents want to do in that second case, let both twins die? I guess choosing is impossible, but I'm almost certain in that situation the surgeons choose the stronger twin. lol * +

freshdeadlyroses 25.04.19 - 12:35pm
It was on greys anatomy once I reckon * +

ladibud 25.04.19 - 12:41pm

@ freshdeadlyroses - 25.04.19 - 12:30pm
What did the parents want to do in that second case, let both twins die? I guess choosing is impossible, but I'm almost certain in that situation the surgeons choose the stronger twin. lol