A Comparative Analysis of the General Defence of Necessity in Law

This essay provides a comprehensive analysis of the general defence of necessity in law. It begins by defining the defence as arising when a person chooses the lesser of two evils to prevent greater harm. The essay traces the historical background of the defence, referencing cases like Reniger v Fogossa and R v Dudley and Stephens, which established limitations, particularly in murder cases. The application of the defence in Malaysia, as provided under section 81 of the Penal Code, is then examined, highlighting its general nature and illustrations. The essay contrasts this with the defence of duress and discusses the elements required for the defence to be successful. Furthermore, the essay explores the defence in other jurisdictions, particularly in English law, where its application is more restricted, and the United States. The essay discusses cases like Re A (Children) and United States v Holmes, which illustrate the complexities and nuances of the defence, especially in cases involving the sacrifice of life. The essay concludes by highlighting the key principles and elements of the defence, emphasizing the importance of imminent danger, reasonable action, and the proportionality of the evil avoided.

Running head: Necessity 1
General Defence of Necessity
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Necessity 2
General Defence of Necessity
Introduction
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 harm1. 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 yourself2.
Historical Background
It is not clear when the defence was first in existence. However, it is believed that it
was in existence as early as 16th 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 necessity4. 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 harm5. 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 Stephens6. In that case, the accused Dudley and Stephens were charged
with the offence of murder. Dudley, Stephens, Brooks and Parker were sailors when they
1John Hostettler, A History of Criminal Justice in England and Wales(Waterside Press 2009) 220
2R v Willer (1986) 83 Cr App R 255 and in R v Conway (1988) 3 All ER
3(1551) 1 Plowd 1
4Jerry Elmer, ‘A Necessary Good’(New Clear Vision, 4 August 2011) www.newclearvision.com/2011/08/04/a-
necessary-good/ accessed 29 May 2018
5Edward Arnolds and Norman Garland, ‘The Defence of Necessity in Criminal Law: The Right to Choose the
Lesser Evil’ (1975) 65 (3) Journal of Criminal Law and Criminology 289, 291
6 [1875] 14 QBD 273

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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.
General 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

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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 code7.
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 available8.
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 offence9.
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 injury10.
7Tan Cheng, ‘The General Exception of Necessity Under Singapore Penal Code’ (1990) 32(2) Malaya Law Review
271 274
8Chan Wing Cheong, Stanley Yeo and Michael Hor, Criminal Law for the 21st Century: A Model for
Singapore(Academy Publishing 2013) 319
9Cheng (n. 6) 280
10Cheng (n. 6) 280

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The availability of the defence to all crimes both under and outside the Penal Code is
illustrated byPP v Ali Bin Umar & Others11an 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.
General Defence of Necessity in other jurisdictions
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 Stephens12. 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
11 [1982] 2 MLJ 51
12 [1875] 14 QBD 273
13 [2000] 4 All ER 961 (192)

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grant the doctors the permission to proceed with the procedure of separating the conjoined
twins.
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
Martin14. 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 Shyler15. 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
14 [1989] 1 All ER 652
15 [2001] 1 WLR 2206 at 2224

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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 die16. 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.
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 Stephens17. In Re A (Children)18the 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.
16Sarah Boseley, ‘Law decided fate of Mary and Jodie’(The Guardian, 5 May 2002)
www.theguardian.com/uk/2002/feb/05/sarahboseley accessed 21 May 2018
17 [1875] 14 QBD 273
18 [2000] 4 All ER 961 (192)

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In the United States case of United States v Holmes19 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 law20.
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 Howe21. 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 die22. 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 legislation23. The commission proposed for the abolishment of any general
1926 Fed.Cas. 360 (No. 15 383)
20Stephen Schwartz , ‘A Common Law Necessity Defence in Federal Criminal Law’ [2008] The University of
Chicago Law Review 1259, 1260
21[1987] AC 417
22Hostettler (n.1) 221
23Hostettler (n.1) 222

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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 nature24.
Duress of Circumstances and Necessity
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 Martin25it 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.
24Joel Samaha, Criminal Law, (12thedn, Cengage Learning 2016) 19
25 [1989] 1 All ER 652

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The overlap between the two defences is that they both involve the accused person
being faced by difficult choices26. The difficult in establishing necessity as a general defence
led the Law Commission to propose the defence of duress of circumstances27. 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
harm28. However, the defence was suggested not to be available for charges of murder and
attempted murder29.
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 Stephens30. 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.
26Law Commission, Defences in Criminal Law(Law Com No 95, 2009)
27Hostettler (n.1) 222
28Law Commission, A Criminal Code for England and Wales Volume 2: Commentary on Draft Criminal Code Bill
(Law Com No 177, 1989) 230
29Law Commission (n.29) 231
30 [1875] 14 QBD 273
31 [2000] 4 All ER 961 (192)

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Bibliography
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 21st 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, (12thedn, 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

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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