What is the defence of necessity?
The common law defence of necessity applies where natural or human threats induce a person to break the law to avoid even more dire consequences.
In R v Cairns  2 Crim App Rep 137 it was held that a person will have a defence of necessity if:
- the conduct was necessary, or reasonably believed to be necessary, to avoid or prevent death or serious injury to him or herself, or to another,
- the prevention of death or serious injury was the reason for the conduct, and
- the conduct viewed objectively (that is, from a reasonable person’s point of view) was reasonable and proportionate when viewed in light of the danger to be avoided or prevented.
Once a person raises a proper basis for the defence of necessity, the prosecution must prove beyond reasonable doubt that the defence does not apply.
The person is entitled to an acquittal (a finding of not guilty) if the prosecution is unable to do this.
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PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.