The Lord Advocate

In the Lord Advocate's Reference [2000], three women vandalized a Trident Submarine installation. They caused eighty thousand pounds worth of damage and were charged with criminal damage and theft. The women's reason for the offence was that they were protecting the lives of innocent people as the submarine was to be used for genocide. The defence in the case relied on international law that states must never make civilians the object of attacks.

The sheriff accepted that nuclear warheads could only be used selectively and the women were acting to stop a breach of the law. The women were consequently acquitted. Because these women were acquitted, their intentional law breaking was justified because they were acting to stop a breach in the law. However, are we not required as citizens to try to get the laws changed legally rather than breaking them? In criminal law,when a person does break the law, the defence of 'necessity' may be used.

Sir James Stephens stated in the Digest of the Criminal Law (1887) that the doctrine of necessity could be described in the following manner, "An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided9".

Defendants who use this defence argue that they should not be held liable for a crime, since the actions taken were, for some reason or other, 'necessary'. This defence has been used quite often during criminal cases. One such example in which this defence was used is in an early trail, R v. Dudley and Stephens10 where two shipwrecked sailors decided to eat a cabin boy. Dudley & Stephens had taken the decision to kill this boy so that they could live, and therefore implying that their lives were worth more than that of the boy's.

The Judges faced with this situation could not approve of a person acting as judge, jury and executioner over the worth of somebody else's life, and decided that the defence of necessity should not be available to the person charged with murder. During the trail, Lord Coleridge stated, "Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in the deliberate taking of another's life to save his own?

In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer must be No". They were both found guilty. Other courts have ruled, in cases where the eaten individual had died of 'natural causes' and starvation was an issue, that cannibalism was acceptable. Resulting from this case, most common law jurisdictions do not allow the defence of necessity to be used in cases of murder. However, suprisinly, this was not the case in Re A (children) (conjoined twins: surgical separation)11. In this case, the defence of necessity was upheld.

This case centred on the granted proposal to separate ischiopagus conjoined twins (joined at the pelvis). Jodie and Mary were born to parents of devout Roman Catholic faith. 'Mary was the weaker of the two twins – indeed, had she been born alone, she would not have survived. Joined to her sister, she was being kept alive by virtue of Jodie's own circulatory system. Although Jodie was considered capable of surviving a separation procedure, Mary was not. If no separation took place, both would die within a matter of months, due to the added strain on Jodie's circulatory system' (Ward LJ in Re: A)12.

In September 2000, the Court of Appeal delivered their judgment to what they described as a 'truly unique' case. They were asked to consider whether a High Court judge had been correct to rule that the proposed separation of the twins, which would result in the death of one of them, was lawful, or whether it amounted to murder. In the opinion of the Court of Appeal, the proposed operation was 'not unlawful', an opinion justified on varied legal grounds including that of 'necessity'.

However, two similar cases (Re A (children) and R v. Dudley & Stephens), both using the doctrine of necessity, both relating to the death of a child, have different outcomes. In both cases a child was sacrificed to benefit another and both cases satisfied the required 'mens rea' (guilty mind) element of the offence. Therefore, why the different verdicts? For the reason that, in Re: A (children), Brook LJ found that the component parts of 'necessity' had been fulfilled in Re: A (Children) (part 4 section 26). Ward LJ agreed, and argued that the doctors were in an impossible position – to act in the best interests of both of their patients at the same time.

In his view, the law could not then turn around to them and say 'heads I win, tails you lose'13. Brooke LJ also explained that he considered Mary to be 'designated for death' by the circumstances, not the surgeons. This further distinguishing the facts of this case from Dudley & Stephens. However, the defence of necessity is not just used in medical and murder cases. The case of R v. Pommell14 established that "necessity" defence could apply, even in a situation where the danger of death or serious injury had passed and was no longer 'urgent' or 'immediate'.

Pommel had been arrested for possession of a loaded firearm and claimed that he was forced to take it from a friend who was threatening to shoot people the night before with it. Pommel kept the firearm overnight with the intention of handing it into the police the following morning. The judge at his trial ruled that the "necessity" defence would not apply in these circumstances and refused to hear it because of the delay between taking the gun and being found with it. In the trial judge's words, "his failure to go immediately to the police robs him of a defence.

" Therefore, Pommell had pleaded guilty and been convicted. He appealed to the Court of Appeal, who ruled that his defence claim should have been allowed to be put to the jury, and therefore allowed his appeal and quashed the conviction. This is the judgment of the Court of Appeal. This means that the necessity defence could still apply, so long as the defendant 'desist from committing the crime as soon as he reasonably can'15. Whatever the crime, there is no justifiable reason for breaking the law. Whether you think that law is wrong for whatever reason, you should work to get the laws changed not simpliy break them.According to Bentham (1748-1832), we must always obey laws because if everybody broke the laws we would have anarchy.

1 Oxford Dictionary of Law, 5th ed: Oxford University Press 2003 2 Farrar J. H; Introduction To Legal Method 1977:6 3 Hart H. L. A; Law, Liberty, and Morality. 11th impression, 1989:25 4 Report of the Committee on Homosexual Offences and Prostitution (CMD 247) 1957 ch2 Para 13 cited in Hart H. L. A; Law, Liberty, and morality. 11th impression, 1989:13 5 The Social Contract and other Myths 2002 – LewRockWell. Com 6 Lyons, D. Ethics and the Rule of Law; 1984 7 BBC1 Teletext. NI Political News, Nov 24th