Thursday, November 11, 2010

The "necessity defense" in British and US law (Zach) (updated)

From Zach:

In light of the recent announcement by British minister, William Hague, that Israeli officials need not worry about being arrested should they choose to visit the UK, it would be worthwhile to revisit a recently adjudicated case that evidences the present state of the British legal system.

Five people are charged with destroying property valued at some $225,000 at the EDO MBM arms factory in Brighton during a January 2009 break-in. They vandalized the plant because they wanted to prevent Israel from carrying out war crimes in Gaza. EDO MBM does business with the IDF, therefore, the defendants claimed, it deserved to be attacked”

In a verdict that can only be described as shocking the conscience, a British jury actually found in favor of the arsonists. But after reading Judge George Bathurst-Norman’s instruction (really, a diatribe) to the jury, it is clear that the jury was not solely to blame; the problem was more fundamental.

Many have criticized Judge Bathurst-Norman already, but few, if any, have dealt with the fundamental legal issue presented by this case – an issue that Judge Bathurst-Norman mentions repeatedly: the doctrine of political necessity.

While US and UK law have important, fundamental differences, it is nonetheless revealing to wonder how the US would have treated this case. In fact, a nearly parallel case was tried in US courts in 1991 - and the "political necessity" defense saw its demise. In United States v. Schoon, “thirty people gained admittance to the IRS office in Tucson, where they chanted ‘keep America's tax dollars out of El Salvador,’ splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office's operation.”

According to Judge Bathurst-Norman:
Necessity means that the defendant whose case you are considering must have been acting reasonably and proportionately to avoid a threat of death or serious injury to others. The test involves two questions: was the defendant impelled to act as he did because as a result of what he honestly believed the situation to be he had good cause to fear that otherwise death or serious injury would result to others? Secondly, if that was possible, is it possible that a person of reasonable firmness, sharing the characteristics of the defendant, would have responded in the same way? If the answer to both questions is "yes" then the defence of necessity is made out.
Compare this to Schoon:
To invoke the necessity defense…the defendants colorably must have show that: (1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law.
The US Court of Appeals ruled:
The district court denied the necessity defense on the grounds that (1) the requisite immediacy was lacking; (2) the actions taken would not abate the evil; and (3) other legal alternatives existed…While we could affirm substantially on those grounds relied upon by the district court, we find a deeper, systemic reason for the complete absence of federal case law recognizing a necessity defense in an indirect civil disobedience case” …Indirect civil disobedience involves violating a law or interfering with a government policy that is not, itself, the object of protest…Analysis of three of the necessity defense's four elements leads us to the conclusion that necessity can never be proved in a case of indirect civil disobedience.

Here are three reasons provided by the US Court of Appeals:

(1) Indirect civil disobedience seeks first and foremost to bring about the repeal of a law or a change of governmental policy, attempting to mobilize public opinion through typically symbolic action. These protestors violate a law, not because it is unconstitutional or otherwise improper, but because doing so calls public attention to their objectives. Thus, the most immediate "harm" this form of protest targets is the existence of the law or policy. However, the mere existence of a constitutional law or governmental policy cannot constitute a legally cognizable harm.

(2) In political necessity cases involving indirect civil disobedience against congressional acts, however, the act alone is unlikely to abate the evil precisely because the action is indirect.

(3) The necessity defense requires the absence of any legal alternative to the contemplated illegal conduct which could reasonably be expected to abate an imminent evil.

There is a huge difference between the reasonable limitations given in US law to the "necessity defense" and Judge Bathurst-Norman's expansive (and, ultimately, untenable) interpretation.

In Judge Bathurst-Norman’s own words, “...the United States supplied 95% of the weapons to Israel, the EU 4% and the United Kingdom 1%.” The company that was attacked denies doing any business with Israel. What does it tell you about the state of the British legal system when a judge and jury promote arson to protest a company whose trade with Israel is either tiny or nonexistent?

Bathurst-Norman explicitly stated that the lead arsonist should be awarded the George Cross for his campaign.

Even if an Israeli official could travel to the UK without fearing arrest, “with friends like these,” why would they choose to?

There is one thing in common between the cases of universal jurisdiction and the necessity defense: if  either concept is applied universally, the result would be chaotic. It would slow down or stop the ability of democratic states to act responsibly, as they would be in fear of autocratic judges like Bathurst-Norman who could and would twist these laws into their own personal opinions of morality. They would also erode the sovereignty of states.

UPDATE: Wikipedia has an article on Necessity in English Law, and from a brief overview it is certainly possible that Judge Bathurst-Norman overstepped in his interpretation:
There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law.
 (h/t Barry)