Choice-Of-Evils Defence

Choice-Of-Evils Defence
Choice-Of-Evils Defence
Quick Summary of Choice-Of-Evils Defence

A choice-of-evils defence is utilised by a defendant to justify their actions as necessary to prevent greater harm. An example of this defence would be if someone stole medicine to save the life of a sick child. This defence falls under the category of affirmative defence, requiring the defendant to provide evidence of its validity. It is also referred to as a lesser-evils defence or a necessity defence.

What is the dictionary definition of Choice-Of-Evils Defence?
Dictionary Definition of Choice-Of-Evils Defence

The choice-of-evils defence, also known as the lesser-evils defence, is an affirmative defence used by a defendant in a criminal case. It asserts that the defendant’s otherwise illegal actions were necessary to prevent greater harm or evil. For instance, if someone breaks into a store to obtain medicine for their sick child, they may use this defence to argue that their actions were justified in order to prevent harm to their child. This defence acknowledges the commission of a crime but contends that the actions were justified given the circumstances. Other examples of affirmative defences in criminal cases include duress, insanity, and self-defence, all of which the defendant must prove in order to be successful.

Full Definition Of Choice-Of-Evils Defence

The choice-of-evils defence, also known as the necessity defence, is a legal doctrine used in criminal law to justify actions that would otherwise be deemed illegal. This defence posits that a defendant’s unlawful conduct is justified if it is necessary to prevent greater harm. It is rooted in the principle that the law should not punish individuals for actions taken to avert a significant and imminent danger when the harm prevented outweighs the harm caused by the unlawful act.

Historical Background

The concept of necessity has deep roots in legal history, traceable to ancient legal systems and moral philosophy. In English common law, the defence of necessity has been acknowledged for centuries, although its application and recognition have evolved. Historically, the necessity defence was often limited in scope and applied sparingly by courts, reflecting a cautious approach to justifying illegal acts.

Legal Framework in the United Kingdom

In the United Kingdom, the choice-of-evils defence is not codified in a single statutory provision but is recognised in case law. The defence is available under both common law and certain statutory provisions, and its application varies depending on the circumstances of each case.

Elements of the Defence

To successfully invoke the choice-of-evils defence, a defendant must typically demonstrate the following elements:

  • Imminent Threat: There must be a clear and immediate danger of significant harm. The threat cannot be speculative or distant; it must be pressing and unavoidable.
  • No Legal Alternatives: The defendant must show that there were no legal alternatives available to avoid the harm. This implies that the illegal action was the only reasonable option under the circumstances.
  • Proportionality: The harm avoided must outweigh the harm caused by the defendant’s actions. The principle of proportionality is central to the defence, requiring a balance between the evils involved.
  • Reasonable Belief: The defendant must have a reasonable belief that their actions were necessary to prevent greater harm. This belief need not be correct, but it must be reasonable under the circumstances.

Case Law and Judicial Interpretation

Several landmark cases illustrate the application of the choice-of-evils defence in UK law. Notable cases include:

  • R v. Dudley and Stephens (1884): This case involved shipwrecked sailors who killed and ate a cabin boy to survive. The court rejected the necessity defence, holding that necessity could not justify murder, setting a precedent that the defence has limitations, especially in cases involving the taking of innocent life.
  • Southwark London Borough Council v Williams (1971): Homeless individuals occupied vacant properties to avoid sleeping on the streets. The court recognised the hardship faced by the defendants but ultimately ruled against them, underscoring the limited scope of the necessity defence in property-related offences.
  • R v. Conway (1989): The defendant drove recklessly to escape what he believed was a threat to his passenger’s life. The court accepted the necessity defence, highlighting that the belief in imminent danger, if reasonable, could justify the illegal act.

These cases demonstrate the judiciary’s careful approach to the necessity defence, balancing the need for legal flexibility with the imperative to uphold the rule of law.

Application in Specific Contexts

The choice-of-evils defence can arise in various contexts, including:

  • Medical Necessity: In cases where medical professionals or individuals administer treatments or take actions that would otherwise be illegal to save a life or prevent serious harm,.
  • Environmental Activism: Activists who engage in illegal activities, such as trespassing or vandalism, to prevent environmental damage might invoke the necessity defence, arguing that their actions are aimed at averting greater ecological harm.
  • Civil Disobedience: Individuals who violate laws as part of protests or civil disobedience campaigns may claim necessity, asserting that their illegal actions are necessary to highlight and prevent broader societal injustices.
  • Self-Defence and Defence of Others: Although distinct, the principles underlying the choice-of-evils defence often intersect with self-defence claims, where individuals take illegal actions to protect themselves or others from imminent harm.

Limitations and Criticisms

The choice-of-evils defence is not without its limitations and criticisms. Key concerns include:

  • Subjectivity and Judicial Discretion: The defence relies heavily on subjective assessments of reasonableness and proportionality, leading to potential inconsistencies in judicial outcomes.
  • Moral and Ethical Boundaries: The defence raises complex moral and ethical questions, particularly when justifying actions that involve harm to third parties or property.
  • Potential for Abuse: Critics argue that the defence could be abused, with defendants falsely claiming necessity to evade liability for their actions.
  • Legal Uncertainty: The lack of a clear statutory framework can result in legal uncertainty, making it difficult for defendants to predict the likelihood of a successful necessity defence.

Comparative Perspectives

The approach to the choice-of-evils defence varies across jurisdictions, reflecting different legal traditions and societal values. In the United States, the Model Penal Code explicitly recognises the necessity defence, providing a more structured framework compared to the UK. Other common law jurisdictions, such as Canada and Australia, also recognise the defence but apply it with varying degrees of restrictiveness.

In civil law countries, the necessity defence is often codified in criminal codes, providing clearer guidelines for its application. For example, German law includes a specific provision for the defence of necessity, outlining the conditions under which it can be invoked.

Policy Considerations and Reform Proposals

Debates about the necessity defence often intersect with broader policy considerations. Advocates for reform argue for clearer statutory guidelines to enhance legal certainty and consistency. Proposals include:

  • Codification: Incorporating the necessity defence into statutory law to provide clearer parameters for its application.
  • Guidelines for Proportionality: Establishing detailed criteria for assessing proportionality to ensure more objective and consistent judicial determinations.
  • Safeguards Against Abuse: Implementing measures to prevent misuse of the defence, such as stricter evidentiary requirements and oversight mechanisms.


The choice-of-evils defence serves as a critical safety valve in criminal law, allowing for the justification of illegal actions under extreme and compelling circumstances. While its application is inherently complex and fraught with challenges, the defence embodies the principle that the law should be flexible enough to accommodate situations where strict adherence to legal norms would result in greater harm.

The UK’s approach to the necessity defence, rooted in common law traditions, reflects a cautious balance between flexibility and the need to uphold the rule of law. As societal values and legal landscapes evolve, ongoing debates and potential reforms will continue to shape the contours of this important legal doctrine.

By providing a mechanism to justify actions taken in dire situations, the choice-of-evils defence underscores the law’s capacity to adapt to the nuanced realities of human behaviour and moral decision-making. As such, it remains an essential, albeit contentious, aspect of criminal jurisprudence, requiring careful consideration and judicious application by courts and lawmakers alike.

Choice-Of-Evils Defence FAQ'S

The choice-of-evils defence, also known as the necessity defence, is a legal principle that allows a person to justify their otherwise illegal actions if they were necessary to prevent a greater harm or evil.

The defence can be used when a person reasonably believes that their actions were necessary to prevent imminent harm or danger to themselves or others.

Examples include breaking into a building to rescue someone trapped inside during a fire, stealing food to prevent starvation, or damaging property to prevent a more serious crime.

No, the defence is typically limited to certain crimes and is not available for serious offenses like murder or rape.

Courts consider factors such as the immediacy and seriousness of the harm being prevented, the availability of alternative courses of action, and whether the harm caused by the defendant’s actions was proportional to the harm being prevented.

Generally, the defence requires an immediate threat of harm. If the harm is not imminent, other legal defences may need to be explored.

Yes, the defence can be used to justify actions taken to prevent non-physical harm, such as financial loss or reputational damage.

Yes, the defence can still be used if the harm being prevented is caused by a third party, as long as the defendant reasonably believed their actions were necessary to prevent the harm.

No, self-defence is a separate legal principle that allows a person to use reasonable force to protect themselves from immediate harm. The choice-of-evils defence applies to situations where harm is being prevented but not necessarily directed towards the defendant.

No, the defence is not always successful, as its applicability depends on the specific circumstances of each case and the discretion of the court. It is important to consult with a qualified attorney to determine the viability of using this defence in a particular situation.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 6th June 2024.

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