Emergency Situations and the Defence of Necessity

Jeremy Finn   | Bio
Professor of Law at the University of Canterbury


This article explores the extent to which the criminal law defence of necessity in both its excusatory and justificatory forms can apply appropriately in situations of emergency or natural disaster. Some particular problems are examined, including the possible limitation of the defence to responses to threats to life rather than threats to property and arguments that the defence only applies to persons to whom a defendant owed some duty of protection. The article draws on research into disaster response and recovery to suggest that several formulations of the defence are not well-suited to protect disaster responders, particularly spontaneous volunteer responders, and calls for reform to reconcile more effectively the competing interests and policy imperatives arising in disaster situations.


1 See Jeremy Finn and Elizabeth Toomey (eds), Legal Consequences of Natural Disasters (Thomson Reuters, 2015).
2 One of the few articles which purports to discuss necessity defences in the context of emergency response is by Michelle Cotton, ‘The Necessity Defense and the Moral Limits of Law’ (2015) 18 New Criminal Law Review: An International and Interdisciplinary Journal 35. Unfortunately the paper discusses only a limited sample of emergency situations.
3 Paul Robinson, Structure and Function in Criminal Law (Clarendon Press, 1997) 70. While this distinction is generally accepted, Robert Walker LJ considered it did not matter if necessity-based defences were regarded as justifications or excuses: Re A (Children) (Conjoined Twins, Surgical Separation) [2000] 4 All ER 971, 1063.
4 The leading judicial application is in the conjoined twins case: Re A (Children) (Conjoined Twins, Surgical Separation) [2000] 4 All ER 961.
5 Steve Glassey, ‘Analysis of Urban Search and Rescue Markings Applied Following the 22 February 2011 Christchurch Earthquake’ (2013) 1 Journal of Search and Rescue 29, 41.
6 James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71 Modern Law Review 217, 226.
7 Ibid, 245-246.
8 Findlay Stark, ‘Necessity and Nicklinson’ [2013] Criminal Law Review 949, 951.
9 Meir Dan-Cohen, ‘Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law’ (1984) 97 Harvard Law Review 625.
10 Proportionality is discussed in Part VI.
11 Andrew Simester and Warren Brookbanks, Principles of Criminal Law (Thomson Reuters, 4th ed, 2012) 453.
12 The case law is extensively recounted in R v Quayle [2005] EWCA Crim 1415, [35]-[53].
13 Simester and Brookbanks, above n 11. A similar view was taken by the High Court of Australia in Taiapa v The Queen (2009) 240 CLR 95.
14 Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and Punishments) (MacMillan, 4th ed, 1887) 24-25, a view adopted in many cases, for example, by Brooke LJ in Re A (Children) (Conjoined Twins, Surgical Separation) [2000] 4 All ER 961, 963.
15 Kapi v Ministry of Transport (1991) 8 CRNZ 49, 57.
16 Perka v The Queen [1984] 2 SCR 232.
17 R v Latimer [2001] 1 SCR 3.
18 Perka v The Queen [1984] 2 SCR 232, 276.
19 Edward M Morgan, ‘The Defence of Necessity: Justification or Excuse?’ (1984) 42(2) University of Toronto Faculty Law Review 165.
20 Criminal Code (Qld) s 25; Criminal Code (NT) s 33.
21 Shaun P Martin, ‘The Radical Necessity Defense’ (2005) 73(4) University of Cincinnati Law Review 1527, 1535-1536. See also Stephen S Schwartz, ‘Is There a Common Law Necessity Defense in Federal Criminal Law?’ (2008) 75(3) University of Chicago Law Review 1259; Michele Cotton, ‘The Necessity Defense and the Moral Limits of Law’ (2015) 18 New Criminal Law Review: An International and Interdisciplinary Journal 35.
22 Martin, ibid.
23 Re A (Children) (Conjoined Twins, Surgical Separation) [2000] 4 All ER 961, 1052.
24 Crimes Act 1958 (Vic) s 322R; Criminal Code (WA) s 25. Section 322R of the Victorian Act as enacted in 2014 replaced the earlier s 9AI but is in essentially the same terms.
25 R v Loughnan [1981] VR 443 (SC); R v Rogers (1996) 86 A Crim R 542 (NSWCA); and Taiapa v The Queen [2009] HCA 53, [36]-[37], respectively. See also Behrooz v Secretary of Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36, [15].
26 Criminal Code (Cth) s 10.3; Criminal Code (ACT) s 41.
27 Ian Dennis, ‘On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse’ (2009) 3(1) Criminal Law and Philosophy 29, 48. Curiously Dennis does not, in a broad survey of academic views of necessity, refer to an important article by Winnie Chan and Andrew Simester, ‘Duress, Necessity: How Many Defences?’ (2005) 16(1) King’s Law Journal 121.
28 Perka v The Queen [1984] 2 SCR 232, [276].
29 Mattar v The Queen [2012] NSWCCA 98, [7].
30 R v Shayler [2001] 1 WLR 2206 (CA) at [49].
31 This article deals only with the criminal law, but in some cases involving justificatory necessity guidance may be gained from the defence of necessity as it applies in tort law. This permits damage to property where this is ‘reasonably necessary’ to save human life: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, or to avoid or minimise damage to property, whether belonging to the defendant or to another: Cope v Sharpe (No 2) [1912] 1 KB 496; The Saltpetre Case (1600) 12 Co Rep 12, 13. This is so even if later events or the conduct of others dispelled the danger, or otherwise prevented, the anticipated harm from occurring: Cope v Sharpe (No 2) [1912] 1 KB 496; New South Wales v McMaster [2015] NSWCA 228. Note that the criminal law justificatory defence has been stated in narrower terms in some jurisdictions and, of course, tort law has no equivalent of excusatory necessity.
32 JC Smith, Justification and Excuse in the Criminal Law (Stevens, 1989) 77-78.
33 Michael Bohlander, Principles of German Criminal Law (Hart Publishing, 1st ed, 2008) 106-109. For further discussion of this issue, see Michael Bohlander, ‘In Extremis – Hijacked Airplanes, “Collateral Damage” and the Limits of the Criminal Law’ [2006] Criminal Law Review 579, 592; Kai Moller, ‘On Treating Persons as Ends: The German Aviation Security Act, Human Dignity and the German Federal Constitutional Court’ [2006] Public Law 457; Simon Bronitt and Dale Stephens, ‘Flying Under the Radar – The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’ (2007) 2 Oxford University Commonwealth Law Journal 265, 269.
34 Bronitt and Stephens, above n 33, 275.
35 Stuart P Green, ‘Looting, Law, and Lawlessness’ (2007) 81 Tulane Law Review 1129, 1132-1133.
36 EL Quarantelli and Russell R Dynes, ‘When Disaster Strikes (It Isn’t Much Like What You’ve Heard & Read About)’ (1972) 5 Psychology Today 67, 67-68; Caroline C Nobo and Rebecca D Pfeffer, ‘Natural Disasters and Crime: Criminological Lessons from Hurricane Katrina’ in Rob White (ed), Climate Change from a Criminological Perspective (Springer, 2012) 181.
37 The law of tort clearly allows this, see Cope v Sharpe (No 2) [1912] 1 KB 496; The Saltpetre Case (1606) 12 Co Rep 12, 13.
38 Simon Gardner, ‘Direct Action and the Defence of Necessity’ [2005] Criminal Law Review 371, 376.
39 For these powers, see Civil Defence Emergency Management Act 2002 (NZ) (CDEMA) s 85(1).
40 CDEMA s 89.
41 CDEMA s 90.
42 CDEMA s 85(1).
43 For a fuller discussion, see Jeremy Finn and Elizabeth Toomey, ‘Providing for legal issues in disaster management: lessons from New Zealand and the USA’ (Paper Presented at Proceedings of ANZDEM Conference, Gold Coast, 5-7 May 2014) 28, 46.
44 The applicability of a necessity defence where the defendant mistakenly believes a peril exists is too large an issue to explore here. It is notable that in the law of tort a mistaken belief in the existence of the peril is fatal to the justificatory defence: Cope v Sharpe (No 2) [1912] 1 KB 496, 504; New South Wales v McMaster [2015] NSWCA 228, [222].
45 Antony Duff, ‘Choice, Character, and Criminal Liability’ (1993) 12 Law & Philosophy 345, 358.
46 P Westen and J Mangiafico, ‘The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters’ (2003) 6 Buffalo Criminal Law Review 833, 908.
47 Marie Crowe, ‘“Quake Brain”; Coping with the Series of Earthquakes in Christchurch’ (2011) 20 International Journal of Mental Health Nursing 381, 381.
48 Casey Rowney et al, ‘“I Laugh and Say I Have Earthquake Brain!”: Resident Responses to the September 2010 Christchurch Earthquake’ (2014) 43(2) New Zealand Journal of Psychology 4, 4.
49 Ibid, 7-8. Studies after the earthquakes also indicate a likely correlation between severe impact of the disasters on an individual and errors in carrying out set tasks – in essence, that such victims are more likely to process information wrongly or to make slips in performing actions, see William S Helton et al, ‘Natural Disaster Induced Cognitive Disruption: Impacts on Action Slips’ (2011) 20 Consciousness and Cognition 1732. The consequences of such an impact fall outside the current study, but are of obvious relevance when considering liability for negligence.
50 Stanley Yeo has advocated a test of what is reasonable for the particular defendant. See, for example, Stanley Yeo, ‘Compulsion and Necessity in African Criminal Law’ (2009) 53 Journal of African Law 90; Stanley Yeo, ‘Revisiting Necessity’ (2010) 56 Criminal Law Quarterly 13, 30. Such a test would be difficult to apply in practice.
51 This proposal is derived from Kai Möller’s suggested approach to determining proportionality in the area of human rights, see Kai Moller, ‘“Balancing as Reasoning” and the Problems of Legally Unaided Adjudication: A Rejoinder to Francisco Urbina’ (2014) 12(1) International Journal of Constitutional Law 222. I am grateful to the anonymous reviewer for this journal who alerted me to this discussion.
How to Cite
Finn J. Emergency Situations and the Defence of Necessity. LiC [Internet]. 2018Dec.19 [cited 2024Feb.21];34(2). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/42

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