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GLOSSARY

Defence of necessity definition

What does Defence of necessity mean?

Necessity can be a defence where the defendant commits a criminal offence but only as the lesser of two evils, but it is of very limited and unclear application.

In a case of conjoined twins, where it was necessary to take the life of the weaker to save the life of the stronger, and without an operation both would have died, it was lawful to kill the weaker twin by reason of necessity: Re A (Children) [2000] 4 ALL ER 961. The defence of duress of circumstances can be described as in effect a defence of necessity or one which achieves the same results.

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Duress and necessity

Duress by threatsDuress by threats provides a complete defence to a charge of any offence other than murder, attempted murder and potentially treason. The defence arises where the defendant commits the offence with the relevant intention but is induced to act by a threat made by another person, or the defendant reasonably believes a threat has been made, to the effect that, unless the defendant commits the offence with which he is charged, then he or a third person will be harmed. The evidence for a defence of duress must be raised by the defendant. Once raised, the burden is then on the prosecution to disprove the assertion beyond reasonable doubt. See Practice Note: Burden and standard of proof in criminal proceedings.The defence involves both a subjective and an objective test which the jury must determine following directions from the judge. The test is:•was the defendant, or might they have been, impelled to act as they did because, as a result of what they reasonably believed another person had said...

Defences in driving cases

Defendant to raise their defenceA number of defences may apply in road traffic cases. These include:•automatism•insanity•duress and necessity, and•the 'hip flask' defenceWhen the defendant relies on a specific defence, they must place sufficient evidence before the court to properly raise the issue at trial. This is known as the 'evidential burden'. It must be distinguished from the legal burden of proof, which places an obligation on a party to prove a fact in issue. The prosecution ordinarily bears the legal burden of proof. See Practice Note: Burden and standard of proof in criminal proceedings.The 'evidential burden' can be satisfied by the defendant entering the witness box and giving details of their defence. Therefore, once raised by the defence, the onus then falls on the prosecution to prove, to the criminal standard (beyond reasonable doubt/so that the jury can be sure), that the defence raised is not true.In cases of the defence of insanity or where the defendant relies on the 'hip flask' defence, the defence bear both the legal burden...

Discover our 2 Practice Notes on Defence of necessity