Necessity, non-violent direct activism, and the Stansted 15: reasserting ‘Hoffmann’s Bargain’

In Thacker and ors the Court of Appeal overturned the convictions of the 'Stansted 15', due to a misdirection on the substantive offence. However, the court rejected their necessity defence, following Jones, as their actions were political, outweighing a desire to avoid a risk of death or serious injury; in a ‘functioning democratic state’ their claims should have been pursued through conventional means. This is a reaffirmation of what we call ‘Hoffmann’s Bargain’; in Jones, Lord Hoffmann noted that non-violent protestors who act proportionately can expect the state to act with restraint, but a necessity defence is unavailable. We argue that this rejection of the defence is mistaken and overly broad for direct action cases. It also fails to acknowledge Valderamma-Vega, where the Court of Appeal held that defendants who claim duress may act for different motives as long as one is the avoidance of death or serious injury.