Current Scots Law on Defence of Necessity.

The court in Moss recognised that in Scotland ‘Danger invites rescue’.  That being the case the defence of necessity is available where an accused acts in an altruistic manner to save a third party as well as to save himself.  Jones and Christie separate the defence into two categories dependant on the circumstances of a case: altruistic necessity and self-interested necessity.  They suggest that when acting in an altruistic fashion an accused may be ‘acting as society would wish him to and be promoting a value supported by the law, in that he is contravening the letter of the law in order to secure some greater good’.  The court in the Lord Advocate’s Reference (No. 1 of 2000) did not restrict rescue to persons with a relationship to the accused, but defined “‘companion’” as ‘anyone who could reasonably be foreseen to be in danger of harm if action were not taken to prevent the harmful event.’  

The accused must be aware that he has a choice to either save life or avoid serious injury or alternatively commit an offence.  This choice must dominate the mind of the accused at the time of the act or the defence will fall.  In the case of Dawson v. McKay, in which the accused drove an ambulance with excess alcohol in his blood, the court found that he was not aware of any dilemma to make a choice between breaking the law and saving life or avoiding great injury, his mind had not been dominated because it had not even occurred to him that he was unfit to drive, he would have acted in any event.  The accused’s belief in only having a choice between committing an offence on the one hand or saving life or avoiding great bodily harm on the other hand is tested objectively.  The Lord Advocate’s Reference (No. 1 of 2000) applies the test of what a ‘sober person of reasonable firmness, sharing the characteristics of the accused’ would do in the circumstances.  This test allows age, sex and physical ability to be taken into account.  The courts recognise that people react to dangerous situations in different ways, not everyone is capable or wants to act the hero.  Gordon states that ‘if the accused had a reasonable belief in the existence of the required type of necessitous circumstances, that will suffice even though no circumstances actually existed in fact.’  It follows that the accused must believe and have reason to believe that his unlawful actions will have some likelihood of removing the apparent danger.

The court in Moss relied on the Canadian case of Perka v. R. when dealing with the subject of choice.  That case regarded the accused as in effect not having a choice to make at all, as human nature and our instinct for survival does not allow a person to accept death or serious injury when there is a way to avoid it, albeit unlawfully.  The court in Perka suggests that the illegal act ‘is not a “voluntary” one’ if there is no lawful escape or avoidance of the danger and this justifies the accused not being criminally responsible as only voluntary acts (or omissions) are criminal.  From this viewpoint it would seem that, in relation to voluntariness and involuntariness, necessity affects the actus reus of an offence.  If there is a reasonable lawful alternative to breaking the law, the decision to commit a crime is regarded as voluntary and therefore criminal.  This outlook from Perka is an intelligent and considered way of describing how and when the defence of necessity operates and correctly states the law as it is in Scotland.          

2. Should Scots Law Allow a Defence of Necessity?

Gordon noted that Hume and similarly Alison expressly rejected a defence of necessity, although he only dealt with it in relation to the traditional plea of Burthensack relative to the capital offence of theft.  Burthensack was a mitigatory defence, which was rejected, for a man who stole as much meat as he could carry on his back due to starvation and therefore necessity.  The reasons behind the rejection included the difficulties in deciding which cases were genuine and which were fake; devising a satisfactory test for necessitous situations and the possible weakening of the law if an accused could break the law, even in restricted circumstances, and not be punished.  The court in Moss v. Howdle deliberately ignored Hume and Alison’s authoritative writings, but founded on Hume’s definition of coercion as discussed in the case of Thomson v. HMA and used that as a foundation for a defence of necessity stating that the two pleas were in principle indistinguishable.  This was a judicious, if perhaps questionable, means of circumventing Hume’s standpoint, which the courts are reluctant to depart from.  

There have also been critics in modern times of a defence of necessity being made available, the principal argument taking the same line as Hume in that such a defence may lead to a weakening of the deterrent effect of the criminal law.  Gordon recognises that ‘the possibilities of abuse are considerable’ and it has been suggested that the plea is seen by accused with no genuine defence as a last resort which they may as well aim for, however if the defence is restricted to the current narrow bounds and not developed significantly in relation to the requirements discussed above, feigners would be very unlikely to succeed.  The Stair Memorial Encyclopedia opines that ‘Only an extreme formalist, incapable of seeing beyond the strict letter of the law, could argue against some recognition of necessity’ and it has been remarked that not to acknowledge such a defence would be ‘irrational and unjust’.  These two latter comments are true, it would be ridiculous to punish a man who, for example, drove while disqualified in an effort to take his child, who had fallen out of a tree and hit his head, to hospital when he had no access to a telephone to call an ambulance.  This was the kind of ‘choice’ the court in Perka referred to when it said it was ‘remorselessly compelled by normal human instincts’.    

The court in Moss did not comment on any juridical basis for the defence, however in Perka, which they found highly persuasive when identifying the requirements of the defence, the Supreme Court of Canada fully addressed the theoretical thinking behind necessity and discussed alternative approaches.  They recognised that the defence could be seen as either a justification or alternatively an excuse.  A justification would withdraw the criminal liability from the act, Gordon observes this utilitarian approach would involve ‘weighing up the competing interests in order to assess whether the criminal conduct of the accused was justified as having secured a greater good or lesser evil than the one avoided’, this approach was thought by the court to introduce subjectivity into the law and therefore was not favoured.  The preferred approach was that of an excuse, which acknowledged the act was wrong, but excused it because there was no real choice but to commit it.  The Canadian court stated the excuse principle ‘rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience’.  This humanitarian attitude goes hand in hand with the principle that only voluntary acts are punishable by law and an accused is acting in effect ‘involuntarily’ when he commits the criminal offence as it was realistically necessary.  It has been suggested that the main reason for Hume rejecting a defence of necessity was that he believed that an accused who had successfully pleaded the defence would be regarded as having been justified in committing the crime and ‘laudable as that of a police officer who arrests by force a dangerous criminal who resists the warrant that the officer carries’.  If the court in Moss had followed the Canadian court in Perka in relation to the excuse principle they could have perhaps addressed Hume’s rejection of necessity but got around it by denying that the defence justified the criminal act as he had possibly believed.

In England, the courts expressly rejected necessity as a defence to murder in the case of R. v. Dudley and Stephens .  That case involved the accused being convicted of the murder of a young man whom they had killed and fed on in order to save their own lives.  Gordon states the law in Scotland to be the same as in England in relation to desperate situations where the termination of one man’s life could save another man’s life.  He asserts that a person could never escape criminal responsibility where he kills someone with the aim of saving himself, (other than in cases of self defence which are not relevant here), matters must be left to take their own course.  The defence of necessity should never be made available to an accused in that situation in Scotland, if it was, the law would be made a mockery and ridiculed by society.  Gordon notes that ‘Professor Glanville Williams suggests, that “We need a general rule, and one allowing necessity as a defence to homicide where the minority are killed to preserve the majority is on the whole more satisfactory than the opposite”’.  This is a very real point following the terrorist attacks on New York on 11th September, 2001 where thousands of lives would have been saved if the aeroplanes had been shot down.  There is no authority in Scotland or England in relation to protection of mass third parties in this way, the circumstances are distinguishable from Dudley and Stephens and it would be unjust to find a person culpable where he had taken, say, 250 lives to save 2,500.  The law of necessity should be expanded in this restricted way to take account of modern international troubles.  The English case of Re A (Children) concerned conjoined twins, Mary and Jodie.  The court used the law of necessity to justify the intentional killing of the weaker twin, Mary in order to save Jodie’s life, perhaps this case will be looked to in the future as persuasive authority to expand the law in Scotland.  In this kind of situation it would be beneficial to treat necessity as a justification rather than an excuse.

In conclusion, Scotland should certainly allow a defence of necessity.  It would be unjust and unreasonable not to, indeed in cases such as medical emergency it would be nonsensical.  The requirements as set out in Moss should not be broadened to account for anything less than immediate danger of death or great bodily harm to the accused or a third party.  In cases such as road traffic offences and damage to property, necessity should be viewed as an excuse rather than as a justification, it is conceded that this approach does not alter the availability of the defence in any circumstances, but it may encourage acceptance of the defence by those who do not regard it with enthusiasm.  It has been said that ‘necessity creates the law; it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal.’  In these modern times of terrorism, it would be reasonable and just to extend necessity to situations where a number of people are killed, strictly in circumstances where they would have died anyway, to avoid a much greater number dying.  

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Bibliography

Busby, N., et al., Scots Law: A Student Guide, edited by Mays, R., (Butterworths, 2000) p.556

Christie, M., ‘The Mother of Invention? Moss v Howdle’ 1997 ELR  1(4) 479

Ferguson, P., ‘Necessity and Coercion in Criminal Law’ 1997 SLT (News) 127

Ferguson, W., ‘Necessity and Duress in Scots Law’ [1986] Crim.L.R. 103

Gane, C.H.W. and Stoddart, C.N., A Casebook on Scottish Criminal Law, (3rd ed, Edinburgh: W. GREEN/Sweet & Maxwell, 2001) pp.255-275

Gordon, Criminal Law (3rd ed) ch.13

Jones, T.H. and Christie, M.G.A. Criminal Law (2nd ed, Edinburgh: W. GREEN/Sweet & Maxwell,1996) pp.173-179

Mayer, J., ‘Old Human Rights’ 1999 SLT (News) 340

Norrie, A., ‘The Defence of Coercion in Scots Criminal Law’, 1984 SLT (News) 13

Jones, T.H., ‘The Defence of Necessity in Scots Law 1989 SLT (News) 253

‘Road Traffic: Is Necessity a Defence to Speeding?’ 1997 Criminal Law Bulletin 26 p.3

Rogers, Jonathan, ‘Necessity, Private Defence and the Killing of Mary’, Crim. L.R. 2001, Jul., 515-526

Smith, J.C., ‘Official Secrets: Defence of Duress of Necessity’ Crim. L.R. 2001, Dec., 986-990

Smith, J.C., ‘Surgical Separation’, Crim. L.R. 2001, May, 400-405

Smith, K.J.M., ‘Duress and Steadfastness: In Pursuit of the Unintelligible’, Crim. L.R. 1999 363

The Laws of Scotland: Stair Memorial Encyclopedia, Vol. 7 198-202, Vol. 15 421  

Wallace, R., ‘How the ‘Trident’ sheriff got it wrong’ 1999 JLSS 44 (11) 18

Table of Cases

Connorton v. Annan 1981 SCCR 307

Cochrane v HMA 2001 SCCR 655

Dawson v. McKay 1999 SLT 1328

Graham v. Annan 1980 SLT 28

Hibbert v R.  [1995] 2 SCR 973

Lord Advocate’s Reference No. 1 of 2000 2001 SLT 507

McLeod v. MacDougall 1989 SLT 151

McNab v. Guild 1989 SCCR 138

Morrison v. Valentine 1991 SLT 413

Moss v. Howdle 1997 SLT 782

Perka v. R. [1984] 2 SCR 232

R. v. Abdul-Hussain (Mustafa Shakir) [1999] Crim. L.R. 570 (CA (Crim. Div.))

R. v. Bourne [1939] 1 KB 687

R. v. Conway [1989] QB 290

R. v. Dudley and Stephens (1884) 14 QBD 273

R. v. Howe [1987] 1 All ER 771

R. v. Shayler [2001] 1 WLR 2206

R. v. Willer [1987] RTR 22

Re A (Children) [2001] All ER 961

Ruxton v. Lang 1998 SCCR 1

Thomson v. H.M.A. 1983 SCCR 368

Tudhope v. Grubb 1983 SCCR 350 (Sh. Ct.)

U.S. v. Holmes 1842

Watson v. Hamilton 1988 SLT (Notes) 316

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