S & Anor, R v

A defence of necessity may be left to a jury only where there is material capable of supporting findings that an immediate or imminent threat of death or serious injury directly caused the unlawful act, that the required licence could not be obtained in time, and that no reasonable alternative could avert the danger. A specific identifiable threat will often be important evidence of gravity and causation, but its absence does not as a matter of law preclude imminence.

A preparatory ruling should not permanently exclude the defence where the factual basis remains untested and further evidence may be available. The trial judge may instead use the overriding objective in the Criminal Procedure Rules to require particulars and supporting material, control cross-examination, and withdraw the issue if the evidential threshold is not met.

The appellants faced allegations that, from March 2006, they deployed unlicensed security guards at specified premises. They sought to rely on necessity, asserting that the guards were required to protect persons at or passing the premises from death or serious injury.

At a preparatory hearing under section 29(1) of the Criminal Procedure and Investigations Act 1996, the Honorary Recorder of Westminster ruled that necessity was unavailable and could not be left to the jury. He considered that the appellants had chosen not to obtain licences and that the asserted threats were too general and insufficiently connected to the decisions to deploy particular guards.

The appellants appealed under section 35(1). The central issue was whether, on the material then available, the judge could exclude the defence altogether rather than control its advancement through case management.

1. Appeal allowed. The preliminary ruling could not stand as a complete bar to the appellants advancing necessity at that stage. Although the trial judge understandably found the defence statements deficient, he could not be satisfied that they represented all the evidence which might be adduced.

2. For necessity to reach the jury, there must be material on which a reasonable jury could find that a licence could not have been obtained before the threat became acute; that deployment of the particular unlicensed guard was directly caused by an immediate or imminent threat of death or serious injury; and that there was no reasonable alternative means of avoiding that danger. The absence of material on the first requirement would end the defence before questions of belief or the reasonableness of belief arose.

3. The trial judge was wrong to treat the lack of a specific identifiable threat as legally conclusive. Such a threat will ordinarily assist proof of gravity and causation, but a continuing threat to an area may conceivably be sufficiently immediate or imminent to compel action. The legal inquiry remains whether the asserted threat caused the particular unlawful deployment.

4. The judge was entitled to require sufficient information to establish that the proposed defence was more than fanciful. However, it was dangerous to exclude it because he had reached factual conclusions in an earlier hearing, thereby preventing the appellants from testing evidence by cross-examination. The court did not decide that the defence would succeed; the asserted new material remained unspecified and its evidential value could not be assessed on appeal.

5. Case management should be used to obtain particulars and written material, define permissible cross-examination, and identify the evidence and documents relied upon. If the evidence concerning timely licensing, causation, or alternatives proves incapable of supporting a rational jury finding, the trial judge may then withdraw the defence. The application for costs from central funds was refused.

• Court of Appeal (Criminal Division): Allowed the appellants’ appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. The defence of necessity was not to be shut out at that stage, subject to trial management and the evidential threshold.

• Crown Court at Southwark: On 22 December 2008, the Honorary Recorder of Westminster ruled at a preparatory hearing that necessity was unavailable and could not be left to the jury.