General defences - Duress and necessity

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Overview

Duress and necessity serve as potential excuses or justifications in criminal law for actions that might otherwise be illegal. For those preparing for the SQE1 FLK2 exam, understanding these concepts is essential. This article delves into the legal framework, landmark cases, and applications of duress and necessity, equipping future legal professionals with the skills to excel in their exams and careers.

Duress: A Challenging Defence

Duress may apply when someone commits a crime under threats of death or serious harm. It includes two categories: duress by threats and duress of circumstances.

Duress by Threats

This involves committing a crime due to a direct threat. The legal test, from R v Hasan [2005] UKHL 22, includes:

  1. The threat must involve death or serious injury.
  2. It must be directed at the defendant or someone they are responsible for.
  3. The threat must be immediate.
  4. No reasonable escape route should exist.
  5. The defendant should not have willingly exposed themselves to such threats.

Example: A gang forces someone into a robbery by threatening their family, which could involve duress by threats.

Duress of Circumstances

Here, a crime is committed in response to a dire situation, without a direct threat. The test, outlined in R v Martin (Colin) [1989] 1 All ER 652, requires:

  1. A reasonable belief in a threat of death or serious injury.
  2. The threat was active when the crime occurred.
  3. Actions were directly caused by the threat.
  4. A reasonable person would have acted similarly under the same circumstances.

Example: A driver in immediate danger runs a red light to escape, potentially invoking duress of circumstances.

Limitations

Duress cannot be used as a defence for murder or attempted murder, as seen in R v Howe [1987] AC 417. Also, it doesn't apply if the defendant knowingly exposed themselves to risk, as in R v Sharp [1987] QB 853.

Necessity: Weighing Harms

Necessity arises when breaking the law prevents a greater harm. Unlike duress, which excuses actions, necessity might justify them.

Legal Test for Necessity

While no definitive test exists, case law suggests:

  1. The act avoids inevitable and irreparable harm.
  2. No more was done than necessary.
  3. The harm caused wasn't disproportionate to the harm avoided.

Landmark Cases

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147

This case illustrates necessity, where separating conjoined twins, resulting in one twin's death, saved the other's life, showing necessity’s power to justify lethal actions.

Key Takeaways:

  • Necessity can, in rare cases, apply to murder.
  • The decision weighed the value of life against suffering.
  • The surgery was necessary due to immediate life-threatening conditions.

R v Dudley and Stephens (1884) 14 QBD 273

This case limits necessity by rejecting its use when shipwrecked sailors killed a cabin boy to survive, emphasizing that necessity cannot justify murder.

Duress vs. Necessity: A Comparative View

Understanding the differences between duress and necessity is vital for exam candidates:

  1. Threat Nature: Duress usually involves human threats, while necessity deals with situational or natural events.
  2. Murder Applicability: Necessity might apply to murder in rare cases, unlike duress.
  3. Justification vs. Excuse: Necessity might make an act lawful, whereas duress excuses it but does not justify it.
  4. Reasonableness: Duress may involve mistaken belief in a threat, whereas necessity generally requires an actual threat.

Real-World Scenarios

To illustrate these defences, consider:

Scenario 1: Corporate Espionage Under Duress

An employee forced to steal data under threat may engage duress, considering factors like threat severity and escape options.

Scenario 2: Trespassing to Save Lives

During a flood, someone breaks into a building to save lives, invoking necessity. Considerations include danger imminence and alternative options.

Scenario 3: Assisting Suicide Under Duress

A terminally ill patient's spouse helps them commit suicide due to threats of painful measures, a complex intersection of duress and necessity.

Conclusion

Mastering duress and necessity is key for success in the SQE1 FLK2 exam and legal practice. These defences challenge professionals to balance law, ethics, and human behavior. By understanding their frameworks, limitations, and applications, candidates can sharpen their analytical skills for complex legal scenarios.

Key Points:

  • Duress and necessity are distinct defences.
  • Duress involves threats, while necessity deals with greater harms.
  • Necessity may justify actions that duress cannot excuse.
  • Both have important limitations, especially concerning murder.
  • Real-world scenarios highlight their practical use.