Necessity as a Criminal Defense: Common Tests and Jurisdictional Approaches

All flashcards

What is the necessity defense?

A defense based on the claim that the defendant broke the law to prevent a greater harm and should therefore not be held criminally liable under the applicable law.

What is the difference between justification and excuse?

A justification presents the conduct as permissible or preferable in the circumstances. An excuse accepts that the conduct was wrongful but argues that the defendant should not be held responsible. Legal systems may use these concepts differently.

What does proportionality assess?

It compares the harm caused by the prohibited conduct with the harm the defendant sought to prevent, asking whether the response was reasonably proportionate.

Why is the no-reasonable-alternative requirement important?

If a safe and reasonable lawful option was available, the defendant may not be able to show that breaking the law was necessary.

What limits a necessity response after an emergency begins?

The response should be limited to what is reasonably needed, and the defendant should stop the prohibited conduct when the danger passes.

Quiz questions

1. Which three requirements are stated for a Canadian necessity defense?Answer: Imminent peril, no reasonable legal alternative, and proportionality.
2. In R v Latimer, how are the first two elements of Canadian necessity assessed?Answer: Using a modified objective standard that considers relevant features of the accused.
3. Which statement describes *nødrett* in Denmark and Norway?Answer: It is an emergency doctrine separate from self-defense and applies when no other option is available.
4. Which requirements are identified for necessity under Singapore’s Penal Code?Answer: Lack of criminal intent, good faith, and an aim of preventing sufficiently serious and imminent harm.
5. What does the Jewish principle of *pikuach nefesh* generally permit?Answer: Breaking almost any law to save a life, subject to specified exceptions.