Publication of the week: Professor Susan Edwards

Edwards, S., “The claims of necessity: Good and harm, excuses and justifications and the moral narratives of necessity”, in Alan Reed & Michael Bohlander (eds), General Defences in Criminal Law (Aldershot: Ashgate, 2014), ch.6  ISBN: 978-1-4724-3337-4.

Professor Edwards explores the way in which the legal doctrine of necessity is shaped in accordance with time, place and cultural context, producing an historical and cultural fluidity as judges as grand masters of necessity balance certain goods and harms in producing a ‘lesser of two evils’ outcome.  Legal theorists have struggled to unearth some operating rationale and schema in the case law decisions, to discover only one certainty: that killing can never be defended by necessity, and even here the rule seems open to challenge.  The role of articulated motives as they surface either as justifications or excuses for conduct has also been investigated for evidence of some abiding pattern.  The impact of the ‘doctrine’ works to mitigate the harshness of law where prosecutorial discretion has failed to sift out cases where prosecutions would otherwise produce absurd outcomes.  Since the defence of necessity presents as heresy to the rule of law, it has received limited approval, resulting in many defendants’ pleas being shoehorned into other defences.  The rule of necessity, in its own internal search for objectivity, is guided by precepts of reasonableness, proportionality and commensurability – all of which, when interpreted, are socially constructed in accordance with class, culture, power (private power and state power), rights and gender of the day, time and place.  What passes as a legitimate necessity argument is determined by prevailing public policy, sieved and sifted through the judicial lens.

Susan Edwards is a researcher and campaigner and a barrister (Door Tenant, 1 Grays Inn Square, London). She is an expert witness and member of the Expert Witness Institute.  She is Dean of Law at Buckingham, and editor of the Denning Law Journal.