Recommendation 18

The Committee also considers that the scope and operation of the necessity defence requires clearer definition. Evidence highlighted uncertainty around the meaning of “greater harm”, the risk of speculative reliance on the defence, and ambiguity as to whether the test is objective or subjective or capable of applying to systemic decisions over time. If the defence is retained, the Member in Charge should consider how the definition could be tightened to provide more clarity on how “greater harm”, necessity and reasonableness are to be interpreted in real-life situations.