Lawful necessity

Lawful necessity

 "There has been a lot of press coverage of this ruling on the occupation of a Crédit Suisse branch by climate activists. I was astonished to read that the defendants were acquitted by the Court, which found a "lawful state of necessity". What conditions must be met to reach such a conclusion, when an offence has been committed? " 

K, Rolle

In criminal law, an offence that has been committed is not necessarily unlawful: in certain circumstances, an acquittal may be granted even where the law has been broken. This is the case in particular in cases of legitimate self-defence or lawful necessity, as defined in articles 15 and 17 of the Criminal Code. The legal reasoning is the same in both cases.

When faced with a situation that is likely to be punishable under criminal law, the judge first determines whether the conditions for the offence in question have been met. For example, the offence of trespassing requires the perpetrator to have entered a private space unlawfully and against the will of the entitled party. Once it has been established that the offence has been committed, the judge must determine whether it can be justified.

A person is in a state of self-defence if he or she is under imminent attack and repels the attack by behaviour that is proportionate to the circumstances. The attack must be directed at the life or physical integrity of the perpetrator or a third party and must be repelled in the least harmful way possible. If the person concerned could have defended himself in a lawful manner, for example by calling the police, then self-defence would not be justified.

As for the state of lawful necessity retained in the judgment you mention, it is accepted not in the presence of an attack but of an imminent danger that may arise from human behaviour or from a natural phenomenon, independent of any human action. The attack is distinguished from the danger by the fact that it is much closer in time. The danger must be impossible to avert other than by the perpetrator's behaviour. As with self-defence, if it is possible to act in a lawful or less harmful way, this condition will be absent.

The danger must involve something more important than what the offender is harming by committing the offence. For example, the state of necessity was upheld for a speeding offence when the driver was trying to save his neighbour who was suffering from violent headaches. If all these conditions are met, the judge will find that an offence has been committed, but it will not be punishable because the offender did all that was reasonably required of him in the circumstances.