The History and Development of the Defence of Necessity

Discuss about the General Defence of Necessity for Singapore Penal Code.

The defence of necessity is considered to arise where a person is faced with two evils and elects the lesser evil of the twothat causes lesser harm[1]. The choice of the lesser evil is to prevent greater harm or danger. The necessity is a common law defence that was developed by courts to excuse persons accused of an offence committed under circumstances where the accused person was faced with two evils but committed the offence to avert the greater evil that would have caused greater harm or injury. An example would be driving recklessly to avoid harm being caused to your passenger or to yourself[2]. 

It is not clear when the defence was first in existence. However, it is believed that it was in existence as early as 16^th century. This is illustrated by Reniger v Fogossa(1551)[3] where the defendant docked his ship contrary to the statute and due bad weather and relied on the defence of necessity[4]. The court held that a man can still be excused of committing a crime where the commission of the crime was as a result of compulsion or necessity to escape greater inconvenience or harm[5]. The decision made the defence of necessity available to persons accused of an offence in the described circumstances.

However, the availability of the defence for a charge of murder was subjected to test in R v Dudley and Stephens[6]. In that case, the accused Dudley and Stephens were charged with the offence of murder. Dudley, Stephens, Brooks and Parker were sailors when they were shipwrecked. The sailors lacked fresh water and food except two tins of turnips. They went without food or water for several days. Dudley proposed the idea of sacrificing one of them but Brooks objected. Dudley, after sometime, proposed that Parker, the cabin boy, be sacrificed. Parker was the weak one among the sailors. Despite their being an objection from Brooks, Dudley and Stephens went ahead and killed Parker and for several days the sailors fed on the blood and body of the cabin boy until they were rescued. The jury could not reach a conclusion, based on the circumstances, whether the defendants were guilty of murder or not and thus the case was transferred to the Queen’s Bench Division. The court held that the killing of the helpless cabin boy was murder unless the defendants had some lawful justification. The defence of necessity was not available in the circumstances. 

The Defence of Necessity in Malaysia

In Malaysia, necessity as a general defence is provided under section 81 of the Penal Code. Section 81 excuses a person from conviction of an offence where the offence is committed without intention and provided the person acted in good faith with the intention of saving himself or another or property from harm. This is determined from the circumstances of the case and facts presented before the court. The Penal Code has provided two illustrations for the defence of necessity. The first being captain of a ship running down a ship with fewer passengers to avoid running down a ship with more passengers. This is without the intention of running down the ship with fewer passengers. Such a captain will be excused. Another being where another person pulls down houses to stop fire from spreading and causing more harm. In such circumstances he will not be found to have committed any offence provided he had no intention of committing the crime and he acted in good faith.

Even though section 81 does not specifically refer to the defence of necessity, the wording of the provision provides for the defence of necessity. The manner in which the provision is drafted leaves the defence available to all criminal offences and thus making it a general defence.The defence is available to crimes both under and outside the penal code[7]. This can be contrasted to the defence of duress provided under section 94. Duress as a defence is available to other offences under the Code except murder, offences punishable by death and offences under Chapter VIA of the Act. It might be stated that the defence of necessity under section 81 compliments the defence of duress under section 94 by providing defence for offences where duress as a defence is not available[8].

The person accused of an offence must have believed in existence of harm or danger to a person or property. The harm can be directed to another person or another person’s property. The person must have acted in good faith in the process of averting imminent harm or injury. Section 52 of the Code defines good faith as acting with due care and attention. The defence of necessity, under section 81, is thus not available to those who have acted recklessly and without due regard to care and attention. The defence will also not be available where the defendant has unreasonable disregarded any other safe alternative course available at the commission of the offence[9].

The Defence of Necessity in England

The purpose of committing the crime must be to avert any injury or harm to person or property. Even though section 81 does not provide for the weighing of harms or injuries, that is lesser or greater evil, it will be unreasonable and contrary to policy of the legislation if purpose of the commission of the crime was to avoid a lesser harm. The defence should only be available to the defendant where he acted to prevent greater harm or injury[10].

The availability of the defence to all crimes both under and outside the Penal Code is illustrated byPP v Ali Bin Umar & Others[11]an accused person was excused from conviction of an offence based on the defence of necessity under section 81 of the Penal Code. The Respondents were charged with the offence of being in possession of tin-ores in Malaysia without the Director General’s permission contrary to section 9 of the Customs Act. It was held that under the circumstances there were justifications for the respondents to enter into Malaysian waters. Their boat was in distress as the boat’s rudder was broken. It was held that the defendants docking in Malaysia was a necessity to protect their boat and the crew.It was unreasonable for them to seek permission from the Director General under the Customs Act. The court allowed the defence of necessity and acquitted the respondents of any offence despite the fact they had committed the offence.

Even though English law recognises existence of the defence of necessity, however, its application is restricted and the courts have not accepted it as a general defence. The defence has been restricted to private and public necessities. The private and public necessities are similar to illustrations provided under section 81 of the Malaysian Penal Code. That is, a person vandalising some other person’s property to protect other properties from being destroyed by fire. However, the courts have been slow to accept it in charge for murder as was found in R v Dudley and Stephens[12]. The court, in that case, leaned more towards preservation of life than towards the necessity of ending life. However, the English courts have accepted that, under extreme circumstances, the defence may be available to a person charged with murder. This was one of the grounds the court relied on in Re A (Children)[13] to grant the doctors the permission to proceed with the procedure of separating the conjoined twins.

Re A (Children) Case: Controversy and Use of Defence of Necessity

In Re A (Children) the court was called upon to grant permission to perform an operation on conjoined twins, Mary and Jodie. Allowing the operation meant permitting the killing of Mary. All the judges agreed that killing of Mary, through the separation, is a crime of murder and that the court could not permit unlawful act unless was lawfully justifiable. Mary was the weak one with weak heart, lung and brain and depended on Jodie for survival. The court’s failure to grant the sought permission would mean death of the twins after a short period of time. However, granting permission to proceed with the separation meant Jodie had an opportunity to live a normal and healthy life. The court dismissed the appeal and granted the permission to be conducted.

The general principle and elements of the defence of necessity was stated in R v Martin[14]. The person accused of an offence raising the defence of necessity must have been compelled to act in the manner he did believing that there was imminent danger or harm. The next issue is whether a reasonable person in that person’s circumstance would have acted in the same manner or not. In 2001 Lord Woolf CJ, revisited the elements in R v Shyler[15]. The Judge stated that for the defence of necessity to succeed a person must prove the following ingredients: that the act must have been done to avoida greater evil, the evil must have beenfocused towards the defendant or a person or persons for whom he has responsibility or, persons for whom the situation makes him responsible, the act must have been reasonable and proportionate to the evil avoided.

Re A (Children) was a very controversial case and was widely publicised. The parents of the twins were Catholics and refused permission to separate the children. They believed that everything that was happening to their children was God’s plan and that it was God’s plan for both of them to live or both of them to die[16]. The Catholic Church joined the parents in opposing the operation. Therefore, the court was placed in a difficult situation of choosing between two evils. That is of allowing the appeal and refusing the permission with the consequence that both the twins die and of dismissing the appeal and granting the permission with the consequence that Mary dies. According to Lord Justice Weird, in the prevailing circumstances, the law excused an accused person who has chosen the lesser of the two evils. However, the judge recognised the common law judges’ attitude towards allowing the defence of necessity where innocent life has been taken deliberately.

Elements of Necessity for the Defence to Succeed

The court in that case discussed the limits and elements of necessity as a criminal law defence. Lord Justice Robert Walker considered the elements of necessity as espoused by Sir James Stephen and the circumstances of the case and held that the case satisfied the elements and in the circumstances the doctors are charged with killing Mary the defence of necessity would be available to them. The elements are that the person must have acted with the sole purpose of avoiding inevitable and irreparable evil; the person’s act must have been reasonable under the circumstances, and the evil avoided must be greater evil than the one inflicted.

The defence of necessity in murder cases involve sacrifices and the courts have questioned the criteria of the choosing the person to die. This was one the reasons the court denied necessity as a defence in R v Dudley and Stephens[17]. In Re A (Children)[18]the choice of the victim in murder cases in defence of necessity was an issue. The court, in obiter, stated that it was easy to determine a victim in a case where a person is standing on rope ladder blocking others from escaping.

In the United States case of United States v Holmes[19] the court refused the defence because of the method employed by the crew to decide who was to be thrown overboard was unfair, however, the court recognised the defence is available even in murder cases. In that case, a ship sank and passengers sought refuge in a leaking lifeboat. The crew decided to throw some passengers overboard to prevent the boat from sinking. Holmes was one of the crew who assisted in throw some passengers into sea. He was charged and convicted of manslaughter. The court dismissed his appeal. In the United States, elements of necessity include the defendant being confronted by two evils but elect the lesser evil, the defendant must have acted act to avert imminent injury, the defendant must have reasonably foresaw a direct link between his conduct and the injury to be avoided, and the defendant must have lacked any other legal alternative other than violating the law[20].

Despite English courts having accepted the existence of the defence of necessity, however, they are still reluctant to admit the defence in murder cases as was seen in R V Dudley and Stephens and R V Howe[21]. However, they have recognised that they are willing to accept the defence in charge of murder in very extreme circumstances as those depicted in Re A (Children). The courts have given supreme importance to innocent life and that person should sacrifice his own life rather than be the charge of who should live or die[22]. Attempts to have necessity as a general defence in England and to have it in legislation have not been possible. The Law Commission, for example, recommended creation of a general defence of necessity, however, it changed its mind and rather recommended for its abolition in case it exists in any legislation[23]. The commission proposed for the abolishment of any general defence of necessity and as such it has been left to the courts to develop such a defence. The development of the defence has been very slow due its contentious nature[24]. 

Due to the difficulties encountered in developing general defence of necessity in England, there has been established a new defence known as duress of circumstances. The defence of is considered to be almost similar to the defence of necessity. However, there are differences.  In duress of circumstance the accused is compelled by circumstances to commit a crime, however, in defence of necessity the accused is faced with two disproportionate consequences but picks one that is lesser in term of effect.

 In R v Martin[25]it was stated that the defence of necessity arises from duress. In that case the appellant was tried and convicted for driving while unqualified. The issue before the court was whether the defence of necessity was available to the appellant under the circumstances of the case. The appellant’s wife was suicidal and on various occasions had attempted to commit suicide. The accused step son overslept that day and was going to be terminated and the only way to avoid that consequence the accused drove him to work. The appellant’s wife also started being suicidal. The appellant pleaded that the circumstances forced him to drive his stepson to work.The son would have lost his job and the wife would, also, have killed herself. The court held the defence of necessity to be available to the appellant. The court admitted that the defence is recognised by English courts under certain circumstances. The court went ahead to state that since the defence arises from pressure surrounding the accused it is conveniently referred to as duress of circumstance.

The overlap between the two defences is that they both involve the accused person being faced by difficult choices[26]. The difficult in establishing necessity as a general defence led the Law Commission to propose the defence of duress of circumstances[27]. The defence was to indirectly have defence of necessity provided in the legislation. The defence is available to a person who has acted to avoid an imminent danger of death or serious personal harm[28]. However, the defence was suggested not to be available for charges of murder and attempted murder[29]. 

Conclusion

There is a general defence of necessity under section 81 of Penal Code. The defence is available to persons accused of all offences, both under the Penal Code and other laws, provided the facts and circumstances fit the defence under section 81. However, in England the defence is yet to be considered as a general defence. An attempt to have it codified was reversed by the Law Commission and now its development as a general defence has been left to Courts. The courts have found it available to other offences but restricted its application for the offence of murder. This can be seen from the case R v Dudley and Stephens[30]. Despite the court stating that the defence would be available to the doctors in Re A (Children)[31], the case does not make it a general defence but only available under extreme circumstances. 

Books and Articles

Arnolds E and Garland N, ‘The Defence of Necessity in Criminal Law: The Right to Choose the Lesser Evil’ (1975) 65 (3) Journal of Criminal Law and Criminology 289

Cheng T, ‘The General Exception of Necessity under Singapore Penal Code’ (1990) 32(2) Malaya Law Review 271

Cheong CW, Yeo S and Hor M, Criminal Law for the 21^st Century: A Model for Singapore (Academy Publishing 2013)

Hostettler J, A History of Criminal Justice in England and Wales (Waterside Press 2009)

Law Commission, A Criminal Code for England and Wales Volume 2: Commentary on Draft Criminal Code Bill (Law Com No 177, 1989)

Law Commission, Defences in Criminal Law (Law Com No 95, 2009)

Schwartz S, ‘A Common Law Necessity Defence in Federal Criminal Law’ [2008] The University of Chicago Law Review 1259

Samaha J, Criminal Law, (12^thedn, Cengage Learning 2016

Welch H, Sourcebook Criminal Law (Cavendish Publishing 2001)

Internet

Boseley S, ‘Law decided fate of Mary and Jodie’ (The Guardian, 5 May 2002) www.theguardian.com/uk/2002/feb/05/sarahboseley accessed 21 May 2018

Elmer J, ‘A Necessary Good’ (New Clear Vision, 4 August 2011) www.newclearvision.com/2011/08/04/a-necessary-good/ accessed 29 May 2018 

Legislations

Penal Code

Cases

Reniger v Fogossa (1551) 1 Plowd 1

R v Dudley and Stephens [1875] 14 QBD 273

PP v Ali Bin Umar & Others[1982] 2 MLJ 51

Re A (Children) [2000] 4 All ER 961

R v Shyler [2001] 1 WLR 2206

United States v Holmes26 Fed Cas 360 (No 15 383)

R V Howe [1987] AC 417

R v Martin[1989] 1 All ER 652