Necessity Defence. Established that “necessity” defence could apply, even in a situation where the danger of death or serious injury had passed and was no longer ‘urgent’ or ‘immediate’.
The reference to this case in the law journals (which you are supposed to quote in court) is [1995] 2 Cr.App.R. 607, which you read out as, “year 1995, volume 2, Criminal Appeals Reports, page 607.”
Fitzroy Pommell had been found by the police, at about 8 a.m., with a loaded gun, and he was arrested for possession of a firearm. He claimed that he had been forced to take the gun from a friend who was threatening to shoot people with it the night before, and that he had kept it with him overnight, intending to give it to his brother to hand in to the police that morning.
The judge at his trial ruled that the “necessity” defence would not apply in these circumstances and refused to hear it, because of the delay between taking the gun and being found with it. In the trial judge’s words, “his failure to go immediately to the police robs him of a defence.” Therefore, Pommell had pleaded guilty and been convicted.
He appealed to the Court of Appeal, who ruled that his defence claim should have been allowed to be put to the jury, and therefore allowed his appeal and quashed the conviction. This is the judgment of the Court of Appeal.
The facts of this case are not particularly charming—Pommell sounds like a bit of a gangster, and the judges obviously didn’t really believe his story about keeping the gun to hand to his brother that morning. They allowed the appeal on the basis that this story should have been put to the jury to decide, but ordered that Pommell should be kept on remand until a retrial could be fixed. Anyway, that’s not the point here: what matters are the legal principles established.
The judgment reasserts the conclusions in R v Martin, 1988,[note] but then goes on to consider the current situation, in which there was a delay of c.8 hours between taking the gun and handing it in. The conclusion is that the necessity defence could still apply, so long as the defendant “desist from committing the crime as soon as he reasonably can” (Lord Justice Kennedy, at p.615E of the judgment). He then adds:
In deciding whether a defendant acted reasonably, regard would be had to the circumstances in which he finds himself. (Kennedy L.J., at p.615F)
The crucial point here is that a magistrate should have to consider all the circumstances of a case not just the question of time when considering whether a necessity defence can apply. In other words (so I would claim), ‘urgency’ is not just a matter of time, but has to consider the particular nature of the threatened danger (Trident).
Time will tell whether this will help us to get anywhere with the necessity defence in TP cases, but it might at least enable us to argue that our evidence about the nuclear danger has to be heard.
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
(See the changelog and authorship page for revision details.)