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Recognition Of Necessity

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Introduction

Does English law recognize the defence of necessity? Necessity is accounted for in the English law as a general defence which can be integrated and is very closely associated with the duress of circumstance and lesser so the duress of threat. Firstly in reference to the duress of circumstance the defendant can be compelled to act in compulsion due to the circumstance he may find himself in and as shown in Northen Ireland v Lynch (1975) the duress of threat can be seen as a type of necessity in overall broadness. The defences labelled out above are all not available for murder or the attempt of murder (Source 3 lines 4-5) however can be for manslaughter due to the offence needing no mens rea to rid a body of a life. The defence of necessity has been recognised in many cases such as in F v West Berkshire Health Authority (1990) whereby a woman who lacked mental capacity had a sterilisation operation carried out due to the fact of a doctors thinking that there was high risk of her getting pregnant and it could cause psychiatric harm to the patient. ...read more.

Middle

It also further reinforces the proposition of the law in society to protect innocent citizens with no criminal intention or evil in mind. The facts that the duress and necessity are not available for murder are evident however cases such as Adams(1975) and Gillick (1985) brought about a distinguished concept of concealed necessity. The concept hypnotises some of the elements required for compulsion and in turn necessity. The facts are they caused the proliferation of the defence of necessity and blinded the principle of intent for the judgements show some sign of distortion. In Gillick the principle of intention is seemed to be blinded in reference to the doctors authority. Furthermore identifying the idea of concealed necessity. Dudley and Stephens is a case which is very interesting and in context contracts with the Herald of free enterprise. In Dudley and Stephens the cabin boy was chosen to be eaten. Can that be seen as appropriate and yes there was an intention to kill but an innocent life of one who was on course for survival and not endangered the lives of others. ...read more.

Conclusion

the defence of necessity is finely placed which keeps in regard the position of all and as in duress the 'sanctity of human life'. However I must say the courts in the context of concealed necessity can in themselves cause a somewhat confusion and distort element however do so in being morally right as the law is placed to protect citizens who do good not those who commit otherwise. In conclusion I firmly believe that the defence of necessity is recognised as a defence in the law. The case of Re A firmly gave the indication of a general defence however after analysing the scope it seems as though the defence can be restricted and the is no clarity as to it's use. Also the facts the defence can be used for protection citizens but can also open certain loopholes have restricted the proper development of the general development of necessity. For the defence of necessity to be recognised as a full defence highly and maturely distinguished from duress a lot needs to be done in terms of definition and jurisprudence only then would the full scope of the defence be acceptable but for now it is a very shallow and narrow defence. ?? ?? ?? ?? ...read more.

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