Necessity Defence. This is a case about driving while disqualified, but is used to set out the general conditions for a defence of “necessity” to succeed.
The reference to this case in the law journals (which you are supposed to quote in court) is 88 Cr.App.R. 343, which you would read out as, “volume 88, Criminal Appeals Reports, page 343.”
Colin Martin was caught driving his son to work while disqualified from driving. He had wanted to argue a “necessity” defence at his trial, on the grounds that his wife was suicidal and was threatening to kill herself that morning unless he drove the son (who had overslept and was late for work). The judge at his trial had told him in advance that he could not use the necessity defence, therefore he pleaded guilty and was convicted. On appeal, the Court of Appeal ruled that the judge had got it wrong, and that Martin should have been able to present a necessity defence. Therefore the appeal was allowed the the conviction quashed. This is the judgment of the Court of Appeal.
The particular facts of this case are not really relevant. What matters is the conclusions of the judgment, which are given by Mr Justice Simon Brown in the following words:
The principles may be summarised thus. First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused’s will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called “duress of circumstances.”
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established. (Simon Brown J., at p.345–346)
Note that the “necessity” defence (also called “duress of circumstances”—see above) is a general defence to almost all criminal charges (excluding murder), and not just to those that are tried in front of a jury. The reference to a jury in the quote above simply means that the two questions posed are considered ‘matters of fact’, to be considered on a case-by-case basis (either by a jury for Crown Court trials, or by magistrates for lesser trials).
The “necessity” defence appears quite a good one for TPers to use, partly because it does not require us to prove that Trident is illegal, merely that it is threatening death or serious injury. In this respect, it differs from the “prevention of crime” defence.[note] In practice, it is a difficult defence, because courts insist on the threatened danger being ‘urgent’ or ‘immediate’, and claim that nuclear threats don’t come into this category.
I think that we should be able to challenge the claim that the nuclear threat is not urgent, by referring to the scale of the threat itself. Both myself and George Farebrother (World Court Project) have compiled notes on this, if you want some leads. See also the case of R v Pommell, 1995 and possibly Chamberlain v Lindon, 1998, which both show that “urgency” isn’t just about time.[note]
Note that the Martin case effectively includes the case of R v Conway, 1988,[note] which therefore should not need referring to. (It is very similar in any case.)
© 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).
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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.)