Necessity : a forgotten defence?

Abstract

This thesis examines the doctrine of necessity and the controversies that surround its function as a criminal defence. Although the exact confines of the necessity defence remain clouded, the contexts in which it has been favourably applied bear certain similarities. Usually, the actor faces an immediate physical threat or danger and to evade this danger he engages in a criminal act. Such behaviour under ordinary circumstances is a crime, but the contention is that in the specific situation where the actor goes against the letter of the law in order to prevent the occurrence of a greater harm, the defence of necessity will prevail due to the actor's choice of the lesser evil. Whether to recognise the necessity principle as a matter of law is a highly controversial subject. This is due to the moral fulcrum which seems to balance the analysis of acts performed in a state of necessity: at what point does an act become criminal so that society should officially punish the actor? What makes the study of such acts of necessity so fascinating and the subject of many a debate is the fact that on one hand lies a victim of circumstance and on the other, a transgressor. This thesis examines the pros and cons of the defence of necessity and possible limits to the defence. In conclusion, this thesis considers a possible future of the "choice of evils" defence in the Maltese Criminal System and proposes the inclusion of the necessity defence in the Maltese Criminal Code, thereby securing its placement and function within our criminal defence system.