Necessity, as a defence, is very similar to that of coercion. In both cases, the accused is said to have had no alternative but to act in a way that would otherwise be regarded as criminal.
The main difference between the two is that, while coercion relates to the accused being forced to commit a crime by someone else, the defence of necessity relies on the surrounding circumstances to provide the immediate danger.
Moss v Howdle [1997 J.C. 123]
- A driver was driving on a motorway with his passenger when suddenly and without warning the passenger shouted out in pain.
- The driver, believing that his passenger had taken seriously ill, drove to the nearest service station approximately three quarters of a mile away at speeds averaging 101.7 miles per hour.
- When they reached the service area the passenger told the driver that he had suffered an attack of cramp.
- The driver was charged with speeding. He argued that the defence of necessity should exculpate him as he reasonably believed that his passenger was in immediate danger of death or great bodily harm. On being convicted the driver appealed to the High Court of Justiciary.
- The appeal was refused. While the Appeal Court confirmed that necessity was a valid defence available when an accused fears that they (or their companion) will suffer “great bodily harm” if they do not immediately act in an otherwise illegal manner, in this case the accused could have stopped his car to investigate the cause of his passenger’s distress, and therefore the circumstances did not require him to speed.
Had Mr Moss been speeding because he was escaping (e.g.) a fast-flowing river of lava from a recent volcanic eruption, he may have had more success in court.
So, necessity requires that the accused found themselves in circumstances which forced them to choose between them or a third party suffering serious bodily harm on one hand, and breaking the law in order to prevent it on the other.
If there is a legal, alternative course of action that could have been taken to prevent the danger, then the defence of necessity will fail.
Just as with coercion, the accused’s actions are to be judged by the standards of an ordinary, sober person “of reasonable firmness”. Just as with coercion, the bar is set deliberately high.