The Effect of an Act of Necessity on Criminal Liability

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Although it doesn’t always seem to work perfectly, the common conception is that if you commit a crime, you will be arrested and punished accordingly. However, are you aware of the possibility of relying on something known as “necessity” as a defence to the liability?

An act of necessity can be explained very simply as doing something that is absolutely needed, regardless of the infringements it may cause on another person’s rights. It is not absolute and has its basis in a small pool of instances.

Necessity can do one or both of two things. Necessity can exclude culpability (fault) and/or unlawfulness. On the latter aspect, if something is unlawful, it obviously means that it is against the law. So how do you justify breaking the law?

 In terms of necessity, unlawfulness may be excluded if a person finds themselves in an emergency situation, within which they have to decide which of two or more interests they are going to act upon. For example, X is walking in the streets and suddenly there is a shootout in the middle of town. All the buildings are locked and X is now left outside to fend for himself. X has two choices; he can stay outside and hope to survive, or break a window to gain access to a building for safety.

This choice is between the possibility of death, or damaging somebody else’s property in order to survive. As the protection of the one interest (life) weighs heavier the other (property). It could be argued that damaging the window is considered necessary and a valid defence as X did what was required to protect himself.

Necessity that excludes culpability is much easier to describe by way of an example rather than fact. A very common example used is that of coercion to commit murder. X holds a gun to Y’s head; X says that if Y does not kill Z, X will kill Y. Y kills Z in the name of self-preservation.

It could be argued as unfair to pass judgment against Y for his action, even though he was fully aware of the action being unlawful. He did what he needed to in order to survive a life-threatening event. Culpability is therefore excluded as the law could not have expected an average person, placed in the same situation, to act any differently.

It can thus be seen that necessity is not a defence that may be raised in any matter. It is heavily dependant on the facts and circumstances in each individual case. Necessity may be considered as a saving grace should you find yourself in a position where you have no option but to do something unlawful.

It is said that necessity is the mother of invention but maybe in this case necessity can be identified as the father of perception!


Duncan O’Connor

Candidate Attorney

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