Duress and necessity

Introduction

Duress and necessity are general defenses in criminal law that define conditions under which a defendant may be excused or justified for actions that would otherwise constitute criminal offenses. Duress refers to situations where an individual commits a crime due to threats of death or serious injury, effectively removing the element of voluntariness. Necessity involves circumstances where unlawful conduct is undertaken to prevent a greater harm, aligning actions with a moral imperative to avert significant danger. A thorough examination of these defenses reveals their legal definitions, fundamental principles, and the strict requirements governing their applicability.

The Defense of Duress

Duress serves as a defense when a defendant commits a criminal act under the compulsion of immediate threats of death or serious bodily harm. It is divided into duress by threats and duress of circumstances, each with distinct legal parameters.

Duress by Threats

Duress by threats arises when an individual is coerced into committing an offense due to explicit threats directed at themselves or someone for whom they are responsible. The House of Lords in R v Hasan [2005] UKHL 22 established a rigorous test comprising several elements:

1. Nature of the Threat: The threat must involve death or serious injury.

2. Target of the Threat: The threat may be directed at the defendant or an immediate family member, or someone close to the defendant.

3. Immediacy and Imminence: The threat must be imminent, leaving no opportunity for the defendant to seek police protection or escape.

4. Causation: The threat must be a direct cause of the defendant's criminal conduct.

5. Reasonableness: A sober person of reasonable firmness sharing the defendant's characteristics would have acted in the same way.

6. No Voluntary Association: The defense is unavailable if the defendant voluntarily associated with known criminals and ought to have foreseen the risk of being coerced.

For instance, in R v Graham [1982] 1 WLR 294, the court articulated the necessity of a two-stage test assessing both the subjective belief in the threat and the objective standards of reasonableness.

Duress of Circumstances

Duress of circumstances applies when the defendant's criminal conduct is compelled by external pressures rather than direct threats from a person. The Court of Appeal in R v Martin (Colin) [1989] 1 All ER 652 extended the principles of duress to situations where natural events or emergencies exert coercive pressure.

Key elements include:

1. Reasonable Belief in Imminent Danger: The defendant must reasonably believe that actions are necessary to prevent death or serious injury.

2. Proportionality: The response must be proportionate to the threat faced.

3. No Reasonable Escape: There must be no reasonable alternative to breaking the law.

An example is when a driver, fearing imminent harm, exceeds the speed limit to reach safety, as considered in R v Conway [1989] QB 290.

Limitations of Duress

Duress is subject to notable limitations:

• Exclusion for Certain Offenses: It cannot be invoked as a defense to charges of murder, attempted murder, or, in some jurisdictions, treason, as established in R v Howe [1987] AC 417.

• Voluntary Exposure to Risk: The defense is unavailable if the defendant knowingly places themselves in a situation where duress is foreseeable, as in R v Sharp [1987] QB 853.

• Immediacy Requirement: The threatened harm must be immediate or nearly immediate, precluding time to seek assistance.

The Defense of Necessity

Necessity justifies unlawful conduct undertaken to avert a greater harm, rooted in the principle of lesser evils. Unlike duress, necessity can, in limited circumstances, provide a defense to murder.

Legal Criteria for Necessity

While the defense of necessity is not as clearly defined, courts have outlined essential elements:

1. Imminent Danger: The defendant must face imminent danger.

2. Inevitability of Harm: The harm can only be avoided by committing the unlawful act.

3. Proportionality: The harm inflicted must not be disproportionate to the harm avoided.

Landmark Cases

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

In this significant case, doctors sought a declaration to lawfully perform a separation surgery on conjoined twins, knowing that it would result in the death of one to save the other. The court held that necessity justified the operation, establishing that:

• The act was needed to avoid an inevitable and irreparable evil.

• No more was done than necessary.

• The evil inflicted was not disproportionate to the evil avoided.

R v Dudley and Stephens (1884) 14 QBD 273

This case involved shipwrecked sailors who killed and ate a cabin boy to survive. The court rejected necessity as a defense to murder, emphasizing the sanctity of life and ruling that necessity does not justify killing an innocent person to save oneself.

Application and Limitations

Necessity is narrowly applied and is often confused with duress of circumstances. It cannot be based on a subjective belief alone; the perceived necessity must be objectively assessed.

Distinguishing Duress and Necessity

Understanding the differences between duress and necessity is essential:

1. Source of Compulsion:

   • Duress: The compulsion arises from human threats.

   • Necessity: The compulsion stems from natural forces or circumstances.

2. Offenses Covered:

   • Duress: Not a defense to murder or attempted murder.

   • Necessity: May, in rare cases like Re A, be a defense to murder.

3. Availability:

   • Duress: Requires an immediate threat of death or serious injury.

   • Necessity: Focuses on preventing a greater harm, even if no immediate threat exists.

4. Mistaken Belief:

   • Duress: A reasonable but mistaken belief in the threat may suffice.

   • Necessity: Generally requires that the threat be real and imminent.

Practical Examples

Analyzing real-world scenarios explains how these defenses operate.

Scenario 1: Coerced Criminal Activity

An individual is forced by a gang to commit burglary under threats of violence against their family. The defense of duress by threats may apply if the legal criteria are met.

Scenario 2: Emergency Medical Intervention

A doctor administers an unlicensed medication to a patient in a life-threatening situation where no legal alternatives are available. Necessity may justify the unlawful act to prevent a greater harm.

Scenario 3: Trespass to Save Life

During a natural disaster, a person breaks into a house to rescue trapped occupants. This act could be defended under necessity, emphasizing the proportionality and immediacy of the threat.

Conclusion

The complexities of duress and necessity reflect the delicate balance the law strives to maintain between individual culpability and moral justification. In situations where these defenses intersect, distinguishing their applicability becomes key. For example, when an individual commits a crime under threat but also to prevent a greater harm, the balance between duress and necessity must be carefully evaluated.

Understanding these defenses requires meticulous attention to their legal requirements and the conditions under which they operate. Jurisprudence has delineated clear, albeit stringent, criteria that govern their application. Analyzing authoritative cases such as R v Hasan, Re A, and R v Dudley and Stephens clarifies the boundaries and interactions of these defenses, providing essential knowledge of their practical implementation.

Proficiency in duress and necessity not only demands knowledge of their definitions but also an appreciation of their limitations and the judicial reasoning that shapes them. Examining these concepts in depth is key for understanding the complex domain of criminal law defenses, highlighting their significance within the broader legal framework.