Recommendation 16

The Committee recognises the rationale for including a defence of necessity in an offence intended to capture conduct of exceptional gravity, and accepts that there may be very rare circumstances in which conduct risking severe environmental harm is undertaken to prevent a clearly greater harm, particularly where human life or similarly grave interests are at stake. However, the Committee notes a difference of views between the Member in Charge, and her legal advisors, and the Scottish Government as to whether section 2(3), which places a legal burden on the accused to establish the defence on the balance of probabilities, is likely to be incompatible with Article 6(2) ECHR.