Category: Law

• By Ben Adigwe

The doctrine of necessity in criminal law indicates that the accused is saying that he had no choice but to break the law.

It involves a situation where the accused is able to choose between two courses, one of which involves breaking the criminal law and the other some evil to himself or others of such an extent that it may be thought to justify the infraction of criminal law. It is a recognised defence in law.

The definition of necessity includes, first, that the accused acted to avoid a significant risk of harm, second, that no adequate lawful means could have been used to escape the harm, and third, that the avoided harm was greater than that caused by breaking the law.

The principles behind the defence are that it is not always in the best interest of social value to blindly obey the law. Secondly, it is not just to punish those who offend the law when they acted to promote a higher social value than would be secured by strict adherence to the law.

Thirdly, that it is in society’s best interest to promote the greatest good and to encourage people to seek to achieve the greatest good even if doing so necessitates a technical breach of the law.

The rationale behind the defence is that sometimes, in certain situations, a technical breach of the law is more advantageous to society than the consequences of strict adherence to the law.

Whatever is done through necessity is done without intention, without will and is compulsory.

The agent is not legally responsible. According to Bracton’s maxim, “that which is otherwise not lawful is made lawful by necessity.”

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In Buckoke V. Greater London Council (1971)1 Ch 655, the court said as follows: “A driver of a fire engine with ladders approaches the traffic lights. He sees 200 yards down the road a blazing house with a man at an upstairs window in extreme peril. The road is clear in all directions.

“At that moment, the lights turn red. Is the driver to wait for 60 seconds or more, for the lights to turn green? If the driver waits for that time, the man’s life will be lost.”

The Learned Justice in that case accepted the view of both lawyers that the driver would commit an offence if he crossed the red light but added that “…nevertheless such a man should not be prosecuted. He should be congratulated.”

The celebrated case in this regards is R V. Dudley and Stephens (1884) 14 QBD 273 where three men and a boy of the crew of a yacht were shipwrecked.

After 18 days in an open boat, having been without food and water for several days, the two accused suggested to the third man that they should kill and eat the boy. He declined but two days later, Stephens killed the boy, who was now very weak.

The three men then ate the boy, and four days later, they were rescued. They were charged with murder.

The jury found that the men would probably have died within the four days had they not fed on the boy’s body, that the boy would probably have died before them and that at the time of killing, there was no appreciable chance of saving life, except by killing one for the others to eat.

The accused were convicted of murder, but the sentence was commuted to six months’ imprisonment.

In the American case of Spakes V. the State 913 S.W 2d 597 (Tex Criminal App 1996), the appeal court in Texas allowed the defence of necessity in determining the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them.

The accused argued that because of his cellmate’s violent criminal records (one bragged about how he had chopped his girlfriend up with an axe), he had to accompany them and escape. The court allowed the defence.

It has also been held by the courts that it was a defence to the offence of procuring an abortion to show that the act was in good faith for the purpose only of preserving the life of the mother. But extreme hunger cannot act as necessity for the act of stealing.

According to the court in Southwark London Borough V. Williams (1971) 2 All ER 175 @179 “…….if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disaster would pass.“

The kernel of the defence is that if the accused faces a dilemma, i.e making a choice between two or more evils, he chooses the lesser evil. There is the defence of necessity in our law relating to self-defence and defence of property.

Under sections 286 and 287 of the Criminal Code, a person is allowed in self-defence to use reasonable force in defending himself or someone against assault.

Under certain conditions, he could use such force that could kill or cause grievous harm to the assailant.

Under sections 289 to 293 of the Criminal Code, a person can use reasonably necessary force to defend their movable property, a dwelling house, structure and vessel in order to prevent housebreaking, trespass and damage from disorderly persons.

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