Current Scots Law on Defence of Necessity

In very general terms, the defence of necessity operates where a person intentionally commits an offence because there is no legal alternative he could take to avoid death or serious injury. A straightforward example offered by the Stair Memorial Encyclopedia is where a lost hill walker breaks into a bothy he happens upon for shelter and uses the owner's fuel1. Prior to the appeal court's decision in the case of Moss v. Howdle2 in 1997 the modern day position relating to a defence of necessity was unclear.

The appeal court chose to explore necessity in full and address the question of whether it was a defence available at all in Scots law, as it had not authoritatively been upheld in Scotland, the only modern case had been Tudhope v. Grubb3 in 1983, which was a Sheriff Court decision and therefore not binding. The appeal court confirmed that necessity was indeed a general defence to all offences, both statutory, including strict liability, and common law and set down the requirements for a successful plea which would result in the accused's acquittal.

The Lord Advocate's Reference (No. 1 of 2000)4 affirmed those requirements defined in Moss and developed some of the dicta in relation to the circumstances of fact in that particular case. As the defence is available to strict liability offences it is presumed that necessity does not negate mens rea and therefore must relate to the actus reus of a crime. The court in Moss stated that the defence is strictly only applicable 'where the accused acted in the face of an immediate danger of death or great bodily harm'.

This condition ensures that the defence is kept within restricted limits to prevent exploitation. The Lord Advocate's Reference (No. 1 of 2000) confirmed this minimum requirement and elaborated on the thoughts behind it. The court stated that 'Unless the danger is immediate, in the ordinary sense of that word, there will at least be time to take a non-criminal course, as an alternative to destructive action'5. That case was in relation to malicious damage, however 'destructive action' could equally be criminally reckless action or whatever kind of unlawful action leads to the offence concerned.

A future danger may be avoided by contacting the police, ambulance or relevant authority, depending on the circumstances, to take charge of and remedy the situation. 'If there is scope for legitimate intervention in the timescale set by the circumstances, it is difficult to see why the law should allow a third party to intervene by actions that would ordinarily be characterised as involving criminal conduct'6. This requirement, while strict, does allow a little scope for 'human judgement in the heat of the moment'7. The pre-Moss case of MacLeod.

MacDougall8 illustrated the need for immediacy: in that case, which involved driving when unfit through drink, the court recognised that the accused had driven in an effort to avoid being further injured by assailants, however he had driven past a marked police car and therefore even if a defence of necessity could have been put forward, which was not clear in 1989, he was not under any necessity to drive when he had committed the offence, the danger had passed. The need for danger of death or great bodily harm is equally as important. In the case of Morrison.

Valentine9 the appeal court held that danger of a punch on the nose was not sufficient for the defence to operate. When defining the defence of necessity, the court in Moss relied on the defence of coercion as a starting point and in particular examined the case of Thomson v HMA10. Coercion is similar to necessity in that the accused commits an offence to avoid danger of death or great bodily harm, but in cases of coercion a third party threatens the accused with the requisite level of violence if he does not carry out a criminal act, which he then does.

The court also observed the English11 and Canadian12 law on necessity, in England the term 'duress of circumstances' has alternatively been used for the defence, and the court adopted their stance that it makes no difference to the defence whether the danger occurs from a threat of violence by another person or from natural phenomena such as a disaster or medical emergency. Therefore, examples affording a defence of necessity could be where an accused drives with excess alcohol in his blood to avoid being further assaulted by unprovoked assailants as was the case in Tudhope v.

Grubb13 or where an accused drives while disqualified because his pregnant wife who was previously driving becomes very ill as in the case of Graham v Annan14. Proportionality is a matter which requires to be addressed. The Stair Memorial Encyclopedia states that necessity only applies where disproportion between the offence and the danger is great, 'it will not be open to a person to choose a criminal course of action purely in order to avoid a moderately less attractive consequence. 15' The court in Moss recognised that in Scotland 'Danger invites rescue'.

That being the case the defence of necessity is available where an accused acts in an altruistic manner to save a third party as well as to save himself. Jones and Christie separate the defence into two categories dependant on the circumstances of a case: altruistic necessity and self-interested necessity. They suggest that when acting in an altruistic fashion an accused may be 'acting as society would wish him to and be promoting a value supported by the law, in that he is contravening the letter of the law in order to secure some greater good'16.

The court in the Lord Advocate's Reference (No. 1 of 2000) did not restrict rescue to persons with a relationship to the accused, but defined "'companion'" as 'anyone who could reasonably be foreseen to be in danger of harm if action were not taken to prevent the harmful event. ' The accused must be aware that he has a choice to either save life or avoid serious injury or alternatively commit an offence.

This choice must dominate the mind of the accused at the time of the act or the defence will fall. In the case of Dawson v. McKay17, in which the accused drove an ambulance with excess alcohol in his blood, the court found that he was not aware of any dilemma to make a choice between breaking the law and saving life or avoiding great injury, his mind had not been dominated because it had not even occurred to him that he was unfit to drive, he would have acted in any event.

The accused's belief in only having a choice between committing an offence on the one hand or saving life or avoiding great bodily harm on the other hand is tested objectively. The Lord Advocate's Reference (No. 1 of 2000) applies the test of what a 'sober person of reasonable firmness, sharing the characteristics of the accused' would do in the circumstances. This test allows age, sex and physical ability to be taken into account. The courts recognise that people react to dangerous situations in different ways, not everyone is capable or wants to act the hero.

Gordon states that 'if the accused had a reasonable belief in the existence of the required type of necessitous circumstances, that will suffice even though no circumstances actually existed in fact. 18' It follows that the accused must believe and have reason to believe that his unlawful actions will have some likelihood of removing the apparent danger19. The court in Moss relied on the Canadian case of Perka v. R. 20 when dealing with the subject of choice.

That case regarded the accused as in effect not having a choice to make at all, as human nature and our instinct for survival does not allow a person to accept death or serious injury when there is a way to avoid it, albeit unlawfully. The court in Perka suggests that the illegal act 'is not a "voluntary" one' if there is no lawful escape or avoidance of the danger and this justifies the accused not being criminally responsible as only voluntary acts (or omissions) are criminal.

From this viewpoint it would seem that, in relation to voluntariness and involuntariness, necessity affects the actus reus of an offence. If there is a reasonable lawful alternative to breaking the law, the decision to commit a crime is regarded as voluntary and therefore criminal. This outlook from Perka is an intelligent and considered way of describing how and when the defence of necessity operates and correctly states the law as it is in Scotland.