Define: Lesser-Evils Defence

Lesser-Evils Defence
Lesser-Evils Defence
Quick Summary of Lesser-Evils Defence

A defence is a justification or explanation used by someone accused of a crime or being sued to avoid being held responsible. It can involve proving innocence through evidence or arguing that their actions were necessary to prevent a greater harm. Defendants and their lawyers employ various types of defences in an attempt to evade punishment or liability.

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

The lesser-evils defence is a type of defence utilised by a defendant in a court case. It is categorised as an affirmative defence, meaning that the defendant presents facts and arguments that, if proven true, would undermine the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are accurate. The lesser-evils defence asserts that although the defendant may have caused harm or committed an offence, in the specific case at hand, the defendant’s actions did not result in net harm or evil due to justifying circumstances. Consequently, the defendant should be absolved of guilt. For instance, an individual who steals food to feed their starving family may employ the lesser-evils defence to argue that their actions were necessary to prevent greater harm. Other examples of affirmative defences in criminal cases include duress, insanity, and self-defence.

Full Definition Of Lesser-Evils Defence

The lesser-evils defence, also known as the necessity defence, is a legal doctrine permitting a person to act in a way that is typically unlawful if, by doing so, they prevent a greater harm. This defence arises in various contexts across criminal and civil law, and its application and acceptance can vary significantly depending on the jurisdiction. This overview examines the theoretical foundation, statutory frameworks, judicial interpretations, and practical applications of the lesser-evils defence within British law, including a comparative glance at other common law jurisdictions.

Theoretical Foundations

The lesser-evils defence is rooted in the moral and philosophical principle of utilitarianism, which advocates for actions that maximise overall happiness or minimise overall harm. When applied to law, this principle suggests that if an individual commits an illegal act to avert a more significant harm, the legal system should recognise the necessity of that act and potentially excuse the wrongdoing. This defence is premised on the idea that the legal system aims to prevent harm and promote the welfare of society. Thus, punishing an individual who has acted to avoid a greater harm may be seen as counterproductive.

Statutory Framework

England and Wales

In England and Wales, the statutory underpinning of the lesser-evils defence is not explicitly codified in a single piece of legislation. Instead, the defence has developed through common law and is implicitly recognised in various statutes. The key statutory reference can be found in the Criminal Law Act 1967, particularly Section 3, which allows for the use of force in the prevention of crime. Additionally, the defence is often discussed in relation to the defence of duress by necessity, although it remains distinct in its application.


Scottish law similarly lacks a codified necessity defence but recognises it through case law. The defence in Scotland is known as “necessity” or “duress of circumstances.” It operates under the premise that an individual should not be held liable for an offence if they acted to prevent a more significant harm.

Judicial Interpretation

Case Law in England and Wales

Several landmark cases have shaped the judicial interpretation of the lesser-evils defence in England and Wales. One of the seminal cases is R v. Dudley and Stephens (1884) 14 QBD 273 DC. In this case, the defendants were shipwrecked and, in a state of extreme hunger, killed and ate a fellow crew member. They were convicted of murder, and the court held that necessity was not a defence to a charge of murder, indicating the limitations of the lesser-evils defence.

Another significant case is R v. Martin [1989] 1 All ER 652, where the defendant drove while disqualified to prevent his wife from committing suicide. The court accepted the defence of duress of circumstances, which is closely related to the lesser-evils defence, highlighting that the action taken was to prevent a greater harm.

In R v. Quayle [2005] EWCA Crim 1415, the Court of Appeal considered the use of cannabis for medical reasons. The defendants argued that they used cannabis to alleviate severe pain, thus preventing greater harm. The court rejected this defence, noting that the harm avoided must be directed and immediate, and the action taken must be proportionate to the harm avoided.

Case Law in Scotland

In Scotland, the case of Moss v Howdle (1997) SCCR 215 is often cited. The defendant drove recklessly to get a passenger, who he believed was having a medical emergency, to the hospital. The court recognised the defence of necessity, ruling that the defendant’s actions were justified given the perceived imminent harm.

Conditions for the Defence

The application of the lesser-evils defence typically requires several conditions to be met:

  • Imminence of Harm: The harm to be avoided must be immediate and imminent. There must be a clear and present danger that necessitates the unlawful act.
  • Proportionality: The act taken to prevent the harm must be proportionate to the harm avoided. The response should not exceed what is necessary to prevent the greater harm.
  • No Legal Alternative: The defendant must have no reasonable legal alternative to the action taken. If a lawful option exists to avert the harm, the defence may not apply.
  • Direct Causal Link: There must be a direct causal link between the action taken and the harm avoided. The unlawful act must directly prevent the greater harm.

Comparative Jurisdictions

United States

In the United States, the necessity defence is recognised but varies by state. Generally, it is more explicitly codified and has a clearer statutory framework. The Model Penal Code, adopted by many states, provides a comprehensive outline for the necessity defence, stipulating that the harm sought to be avoided must be greater than the harm caused by the unlawful act.


Canadian law also recognises the necessity defence, as codified in the Criminal Code. Section 8(3) allows for common law defences, including necessity. Canadian courts have developed a three-part test for necessity: (1) the act must be done to avoid a greater evil; (2) there must be no reasonable legal alternative; and (3) the harm inflicted must be less than the harm avoided.

Practical Applications

The lesser-evils defence can arise in various practical contexts, such as medical necessity, environmental activism, and emergency situations.

Medical Necessity

Cases involving medical necessity often see patients or caregivers breaking the law to secure essential treatment. For example, the use of prohibited substances for pain relief or medical treatment can invoke the lesser-evils defence, though courts often scrutinise such cases closely to ensure the harm avoided is immediate and significant.

Environmental Activism

Environmental activists sometimes invoke the lesser-evils defence when charged with offences related to protests and direct action. For instance, trespassing to prevent environmental harm, such as pollution or deforestation, can be argued as necessary to avert a greater ecological disaster. However, courts generally require clear evidence of imminent harm and proportionality in the actions taken.

Emergency Situations

In emergencies, such as natural disasters or life-threatening situations, individuals may commit unlawful acts, like breaking and entering to find shelter or stealing food to survive. These scenarios often present strong cases for the lesser-evils defence, as the harm avoided is immediate and severe.

Limitations and Criticisms

The lesser-evils defence, while morally compelling, faces several limitations and criticisms:

  1. Judicial Discretion: The application of the defence relies heavily on judicial discretion, leading to potential inconsistencies in rulings. What one judge may deem necessary, another may not, resulting in a lack of predictability.
  2. Moral Ambiguity: Determining what constitutes a “greater harm” can be morally and ethically ambiguous. Different individuals and communities may have varying perspectives on what harms are more severe, complicating the application of the defence.
  3. Risk of Abuse: There is a concern that the lesser-evils defence could be abused by defendants to justify unlawful behaviour. Courts must balance the genuine necessity of actions against potential exploitation of the defence.
  4. Legal Alternatives: Critics argue that the necessity defence should be limited to situations where there truly are no legal alternatives. If individuals resort to unlawful means too readily, it undermines the rule of law.


The lesser-evils defence serves as a crucial mechanism in the legal system to reconcile the rigid application of the law with the complexities of real-life situations. By recognising that certain unlawful acts may be justified to prevent greater harms, the defence aligns legal outcomes with moral and utilitarian principles. However, its application remains contentious and fraught with challenges, necessitating careful judicial consideration to prevent misuse while ensuring justice. As society evolves and new ethical dilemmas emerge, the interpretation and scope of the lesser-evils defence will continue to be a dynamic and debated aspect of legal jurisprudence.

Lesser-Evils Defence FAQ'S

The Lesser-Evils Defense is a legal argument used to justify an action that would normally be considered illegal or unethical, by arguing that it was necessary to prevent a greater harm or evil.

The Lesser-Evils Defense can be used when an individual is facing criminal charges and believes that their actions were necessary to prevent a greater harm or evil from occurring.

Some examples include cases where individuals have committed minor offenses, such as trespassing or theft, in order to prevent a more serious crime, such as assault or murder.

Courts typically consider factors such as the immediacy and severity 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.

No, the Lesser-Evils Defense is typically only applicable in criminal cases where the defendant is facing charges for their actions.

No, the success of the Lesser-Evils Defense depends on the specific circumstances of each case and the discretion of the judge or jury. It is not a guaranteed defence strategy.

No, the Lesser-Evils Defense has limitations and cannot be used to justify actions that are inherently illegal or unethical, such as intentional harm or violence.

Yes, the Lesser-Evils Defense can be used in cases where an individual claims self-defence, arguing that their actions were necessary to protect themselves or others from imminent harm.

Yes, public officials can use the Lesser-Evils Defense to justify their actions if they can demonstrate that their actions were necessary to prevent a greater harm or protect the public interest.

While both defences involve justifying an action based on the necessity to prevent harm, the Lesser-Evils Defense specifically focuses on preventing a greater harm or evil, whereas the Necessity Defense can be used to justify actions necessary to prevent any harm, regardless of its magnitude.

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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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