Necessity (criminal law)

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In the criminal law of many nations, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. As a matter of political expediency, states usually allow some classes of person to be excused from liability when they are engaged in socially useful functions but intentionally cause injury, loss or damage.

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For example, drunk drivers might contend that they drove their car to get away from being kidnapped (cf. North by Northwest ). Most common law and civil law jurisdictions recognize this defense, but only under limited circumstances. Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm they sought to avoid outweighs the danger of the prohibited conduct they are charged with; (b) they had no reasonable alternative; (c) they ceased to engage in the prohibited conduct as soon as the danger passed; and (d) they themselves did not create the danger they sought to avoid. Thus, with the "drunk driver" example cited above, the necessity defense will not be recognized if the defendant drove further than was reasonably necessary to get away from the kidnapper, or if some other reasonable alternative was available to them.

For another example, the fire services and other civil defence organizations have a general duty to keep the community safe from harm. If a fire or flood is threatening to spread out of control, it may be reasonably necessary to destroy other property to form a fire break, or to trespass on land to throw up mounds of earth to prevent the water from spreading.

These examples have the common feature of individuals intentionally breaking the law because they believe it to be urgently necessary to protect others from harm, but some states distinguish between a response to a crisis arising from an entirely natural cause (an inanimate force of nature), e.g. a fire from a lightning strike or rain from a storm, and a response to an entirely human crisis. Thus, parents who lack the financial means to feed their children cannot use necessity as a defense if they steal food. The existence of welfare benefits and strategies other than self-help defeat the claim of an urgent necessity that cannot be avoided in any way other than by breaking the law.

Further, some states apply a test of proportionality, where the defense would only be allowed where the degree of harm actually caused was a reasonably proportionate response to the degree of harm threatened. This is a legal form of cost–benefit analysis.

Specific jurisdictions

Canada

In Canada, necessity is recognized as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe or legal way out of the situation.

Three requirements for defence of necessity:

  1. Urgent situation of imminent peril or danger
  2. No reasonable legal alternative
  3. Proportionality between harm inflicted and harm avoided

The first and second element are evaluated on the modified objective standard. The third element is evaluated on a purely objective standard: R v Latimer, 2001 SCC 1.

Denmark and Norway

Emergency law/right (nødret, nødrett) is the equivalent of necessity in Denmark and Norway. [1] [2] It is considered related to but separate from self-defence. Common legal examples of necessity includes: breaking windows and other objects in order to escape a fire, commandeering a vehicle to serve as an emergency ambulance, ignoring traffic rules while rushing a dying patient to a hospital, and even killing a person who poses an immediate threat to several other people not including yourself. In the last case self-defense laws are not enough, but the case is covered by nødret. Nødret can only be invoked though when no other option is available.

English law

Except for a few statutory exemptions and in some medical cases [3] there is no corresponding defense in English law for murder. [4]

Singapore

Necessity is a defence per the Penal Code. [5] This requires lack of criminal intent, good faith (due care and attention [6] ), and the goal of preventing harm. The harm must be sufficiently serious and imminent to justify or excuse the act.

Switzerland

In two separate cases in 2020, climate activists were not convicted of trespassing and damaging property after holding unauthorized demonstrations in Crédit Suisse branches due to pleading a necessity defense in the face of a climate emergency. [7] [8]

Taiwan (Republic of China)

Necessity is a possible defense per the Criminal Code [9] and the Administrative Penalty Act. [10]

United States

Necessity as a defense to criminal acts conducted to meet political ends was rejected in the case of United States v. Schoon . [11] In that case, 30 people, including appellants, gained admittance to the IRS office in Tucson, where they chanted "keep America's tax dollars out of El Salvador," splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office's operation. The court ruled that the elements of necessity did not exist in this case. [12]

In specific states

The Winooski 44 case in Vermont resulted in activists being acquitted of charges after using a necessity defense.

In religious law

Judaism

In Judaism, the principle of pikuach nefesh allows any law to be broken to save a life, except laws against murder, adultery/incest and blasphemy/idolatry.

Catholicism

See also

Related Research Articles

The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to a psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state. It is also contrasted with the justification of self defense or with the mitigation of imperfect self-defense. The insanity defense is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents them from effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themself or to others.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

The right of self-defense is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including, in certain circumstances, the use of deadly force.

In American jurisprudence, an excuse is a defense to criminal charges that is a distinct from an exculpation. Justification and excuse are different defenses in a criminal case. Exculpation is a related concept which reduces or extinguishes a person's culpability, such as their liability to pay compensation to the victim of a tort in the civil law.

The concept of justifiable homicide in criminal law is a defense to culpable homicide. Generally, there is a burden to produce exculpatory evidence in the legal defense of justification.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force to defend oneself against an intruder, free from legal prosecution for the consequences of the force used. The term is most commonly used in the United States, though many other countries invoke comparable principles in their laws.

<span class="mw-page-title-main">Duty to retreat</span> Legal requirement

In law, the duty to retreat, or requirement of safe retreat, is a legal requirement in some jurisdictions that a threatened person cannot harm another in self-defense when it is possible instead to retreat to a place of safety. This requirement contrasts with the right in some other jurisdictions to stand one's ground, meaning being allowed to defend one's self instead of retreating.

A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party who could face potential injury or death without being rescued. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions and awarded civil penalties, there are also separate ethical arguments for a duty to rescue even where law does not punish failure to rescue.

Voluntary manslaughter is the killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions. Voluntary manslaughter is one of two main types of manslaughter, the other being involuntary manslaughter.

In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.

Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.

In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person and that the accused was in genuine risk of immediate harm or danger.

Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.

In the state of Maryland, the right of self-defense is mostly governed by case law, but there is also a statute.

The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides:

§ 35.05 Justification; generally.

Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:

Canadian criminal law allows for a common law defence of necessity. Necessitas non habet legem; "Necessity knows no law." This well-known maxim reflects the theoretical basis of the defence of necessity: that in dire circumstances of looming peril, the claims of positive law seems to weaken. This controversial common law or judge-made defence has only been firmly recognized in Canadian law since 1984. It is recognized in Canada as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe avenue of escape or legal way out of the situation.

Competing harms, also known as necessity defense or lesser harm, is a legal doctrine in certain U.S. states, particularly in New England. For example, the Maine Criminal Code holds that "Conduct that the person believes to be necessary to avoid imminent physical harm to that person or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the crime charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute." New Hampshire has a similar statute. The competing harms defense was unsuccessfully raised in the trial of Carter Wentworth for his role in the Clamshell Alliance's 1977 occupation of the Seabrook Station Nuclear Power Plant.

<span class="mw-page-title-main">Criminal law of the United States</span>

Criminal law is a system of laws that is connected with crimes and punishments of an individual who commits crimes. In comparison, civil law is where the case argues their issues with one entity to another entity with support of the law. Crimes can vary in definition by jurisdiction but the basis for a crime are fairly consistent regardless.

<i>United States v. Schoon</i> US Court of Appeals decision

United States v. Schoon, 939 F.2d 826 (1991), was a case decided by the United States Court of Appeals for the Ninth Circuit. The court's decision centered upon the legal defense of necessity as it relates to acts of civil disobedience and federal criminal charges.

References

  1. ↑ Straffeloven på Retsinformation
  2. ↑ "Straffeloven av 2005 § 17".
  3. ↑ See Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147
  4. ↑ See R v Dudley and Stephens [1884] 14 QBD 273 and R v Howe [1987] 1 AC 417
  5. ↑ Section 81 of the Penal Code of Singapore.
  6. ↑ Section 52 of the Penal Code of Singapore.
  7. ↑ Stucki, Saskia (30 October 2020). "In Defence of Green Civil Disobedience". Verfassungsblog. Retrieved 31 October 2020.
  8. ↑ "Credit Suisse unterliegt - Genfer Kantonsgericht gibt Klimaaktivist Recht". Schweizer Radio und Fernsehen (SRF) (in German). 14 October 2020. Retrieved 31 October 2020.
  9. ↑ Article 24 of the Criminal Code of the Republic of China.
  10. ↑ Article 13 of Administrative Penalty Act.
  11. ↑ Cavallaro, James L. Jr. (1993), "The demise of the political necessity defense: indirect civil disobedience and United States v. Schoon", California Law Review, University of California Press, 81 (1): 351–385, doi:10.2307/3480788, ISSN   0008-1221, JSTOR   3480788
  12. ↑ U.S. v. Schoon , 939F2d826 (July 29, 1991).
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