IN THE SUPREME COURT
BETWEEN
PEAR LTD
Appellant
-andEARTHWARE
Respondent
SKELETON ARGUMENT ON BEHALF LEAD COUNSEL FOR THE
APPELLANT/RESPONDENT
Name:
Student Number:
Moot judge:
BUNDLE
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Submission 1
Perka v The Queen [1984] 2 S.C.R. 232
Headnote
The appellants were drug smugglers taking marijuana from Colombia to Alaska when their
ship encountered troubles off the coast of Vancouver Island. They were forced to unload
the cargo and set up camp on the shore as the ship was going to sink. They were at risk
of death
Issue
(i)
Is the defence of necessity a justification or an excuse?
(ii)
What is the test for necessity?
Held
(1)
The defence of necessity is restricted to urgent situations of clear and imminent
peril when compliance with the law is demonstrably impossible. There must also
be some way of assuring proportionality
(2)
Necessity goes to excuse conduct, not to justify it.
“The essential criteria for the operation of the defence is the moral involuntariness of the
wrongful action measured on the basis of society’s expectation of appropriate and normal
resistance to pressure. The defence only applies in circumstances of imminent risk where
the action was taken to avoid a direct and immediate peril. The act in question may only
be characterized as involuntary where it was inevitable, unavoidable, and where no
reasonable opportunity for an alternative course of action that did not involve a breach of the
law was available to the accused. As well the harm inflicted by the violation of the law must be less
than the harm the accused sought to avoid.”
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“It rests on a realistic assessment of human weakness, recognizing that a liberal and
humane criminal law cannot hold people to the strict obedience of laws in emergency
situations where normal human instincts, whether of self-preservation or of altruism,
overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such
acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not
bestowed, but pardon is.” Dickerson J p 248.
“A modified objective test falls somewhere between the two. It involves an objective
evaluation, but one that takes into account the situation and characteristics of the
particular accused person. We conclude that, for two of the three requirements for the
necessity defence, the test should be the modified objective test”. Dickerson J p 248.
Submission 2
R -v Martin
Headnote
The defendant appealed against his conviction for driving whilst disqualified. He said he
had felt obliged to drive his stepson to work because his stepson had overslept. His wife
(who had suicidal tendencies) had been threatening suicide unless he drove the boy to
work, since she was so worried that her son might lose his job. The appellant pleaded
guilty to driving whilst disqualified following a ruling by the trial judge that the defence of
necessity was not available to him.
Issue
Was the defence of necessity available in English Law?
Held
Appeal allowed. The English law does allow the defence of necessity in exceptional
circumstances
Simon Brown J:
“The principles may be summarised thus: First, English law does, in extreme
circumstances, recognise a defence of necessity. Most commonly this defence arises as
duress, that is pressure upon the accused's will from the wrongful threats or violence of
another. Equally however it can arise from other objective dangers threatening the
accused or others. Arising thus it is conveniently called "duress of circumstances".
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Secondly, the defence is available only if, from an objective standpoint, the accused can
be said to be acting reasonably and proportionately in order to avoid a threat of death or
serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the
issue should be left to the jury, who should be directed to determine these two
questions: first, was the accused, or may he have been impelled to act as he did
because as a result of what he reasonably believed to be the situation he had good
cause to fear that otherwise death or serious physical injury would result? Second, if so,
may a sober person of reasonable firmness, sharing the characteristics of the accused,
have responded to that situation by acting as the accused acted, if the answer to both
those questions was yes, then the jury would acquit: the defence of necessity would
have been established.”
Submission 3
NHS Trust v MB & Anor [2006] EWHC 507 (Fam)
Headnote
MB was 18 months old. He was admitted into hospital at the age of 7 weeks where he
has remained ever since. He was diagnosed as suffering from Type 1 spinal muscular
atrophy (SMA). This is a congenital condition resulting from an inherited genetic
abnormality. The parents argued that the child had a reasonable quality of life based in
large part upon his interaction with his family, and wanted to continue with the
treatment, whilst the NHS trust wanted to stop treatment.
Issue
The NHS Trust sought a declaration upon the following terms: - It shall be lawful
notwithstanding the parents’ refusal to consent, and in MB’s best interests for the
medical staff (a) to withdraw all forms of ventilation from him and (b) generally to
furnish such treatment by way of pain relief or sedation and nursing care as may be
appropriate to ensure MB suffers the least distress and pain.
Held
The judge held that it was not in the best interests of the child to discontinue ventilation,
although it would be in the child’s best interests to withhold procedures which went
beyond maintaining ventilation and which required the positive infliction of pain.
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