Compare and contrast duress necessity PDF

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In this essay the question is asked to compare and contrast the defence of duress, necessity, duress of circumstances and self defence. For this essay there will be a general description the defences and an analysis by comparing and contrasting the defences. For example, all are affirmative defences that negates liability although all the definite elements are not present. A point also to consider is that they are not denying the elements of the offence but giving reasons as to why the act was committed. SELF DEFENCE

Self defence is a public and private defence which seeks to use reasonable force at a particular time and for a particular purpose. The burden of proof lies on the prosecution to establish that the level of force was unlawful. In establishing such the prosecution must satisfy the subjective and objective element under the Criminal law Act of 1957. Reasonable force is the first a subjective limb which states under s.76(3.) r v Gladstone supports the proposition in which it was held that the reasonableness and the unreasonableness of the defendants belief is material to the question of whether the belief was held by the defendant at all.On the reasonableness the use of force must be necessary. For a private defence it is dependent upon the existence of a justifying ‘trigger’ – self-defence, prevention of crime and so on.A limitation is found in s76(5) where the rule was upheld in O’Grady that where there isa mistaken belief that they were acting in self defence attributable to intoxication the defendant is unable to rely on that mistake. But if the person is actually under attack there should be no direction to the jury based on the intoxicated mistake: r v McGrath. S.76(6) provides that the degree of force must be proportionate and this is further guided by s76(7.) The objective element of reasonable force is set out in the case of Owino.Having concluded that the defendant was or may have been acting in self-defence rather than, say, in revenge, retaliation or in response to provocation, the jury must also consider whether the amount of force used was or may have been reasonable: In A-G for Northern Ireland’s Reference. This was affirmed in Martin it was held that it is the jury must the decide whether the force used was reasonable in the circumstances as he believed them to be. NECESSITY In necessity, the claim is that it advances society’s purposes, if a person breaks the law, if this is the only reasonable method of preventing a greater evil. The principle was devised in the Canadian case of Perka v Queen. Necessity covers all cases where non-compliance with the law is excused by an emergency or justified by the pursuit of some greater good. The recognition of the defence of duress of circumstances was in effect recognition of a general defence of necessity, a defence which had long been resisted by the criminal courts. R v Dudley and Stephens (1884) which held that the defence of necessity could not be allowed and the defendants were convicted. The justificatory form of necessity outlined in Perka v Queen (1984) has now been accepted by the courts in one restricted context,

namely medical intervention; Co join twins. Necessity is a justificatory offence operates where the defendant chooses to break the law where this represents a lesser evil than the initial escaped act.

DURESS OF CIRCUMSTANCES This is an excuse, otherwise known as necessity. It is indeed necessity but in a lower limb, operates when the defendant chooses to infringe a criminal prohibition as a means of averting an imminent peril of death or serious injury to themselves or another for whom they are responsible. Basically, the defense is raised when the defendant is compelled to commit an unlawful act to avoid a threat of harm posed by external circumstances. The defendant is excused as a concession to his human frailty.The cases in which the defence was accepted were Willer and Conway. In both these cases, the defendants were charged with reckless driving and pleaded the necessity to escape from a threatened attack. A further development happened Martins case where the defendant was charged with driving while disqualified. His defence the defendant was faced with ‘objective dangers’ threatening another.The limits of this defence is set out in the Hasan case all except number two see the list in duress of Threats. Duress of threats In duress of threat, the defendant claims to be excused in that it is unfair to expect a person to sacrifice themselves, or a person for whom they are responsible, for the sake of conformity to the law, even where this involves the victimization of another innocent person. Such action is excused however it is necessary to asses the defence objectively and a subjectively: Bowen. Ag Whelan gives the rationale as to why duress exists as a defence. There must be threats or serious injury from a wrongdoer anything less will not suffice. Hudson v Taylor held that it is important to consider whether the treat was operating on the defendant’s mind at the time he committed the offence, notwithstanding the facts that the threat could not be carried out immediately. There must be a casual nexus in there must be a link between the threats made and the offence committed. In r v Cole duress of threats was not available as those making the threats had not told the defendant to commit robbery. For the defence the limitations are set out in the Hasan case where;1.the threat must be of death or serious injury; r v Valderrama. ; 2, the threat must be directed against the defendant, his or her immediate family of whom the defendant reasonably regards himself as being responsible.: r v Hurley.3. the relevant tests are in general objective with reference to reasonableness of the defendants perception.: r v graham. 4. There must have been no evasive action that the defendant could have reasonable

taken; r v gill. 6. The defendant must not have voluntary have laid himself open to the duress he relied upon : r v Sharpe. 7. Duress may be a defence to any crime except forms of treason, murder and attempted murder; (Howe.)

Comparison The defences are all affirmative defenses. Self defence, duress of threats and duress of circumstances have an immediacy requirement. Immediacy in that the threat must be operation on the mind to form a voluntary reaction to the offence. In each of these cases the claim to avoid liability is generally not always that the action undertaken by the defendant was reasonablynecessary to avoid the unjust threat of harm. This could happen in a case where there is a need to justify the non-compliance with the law to justify some greater good; re F. Self-defence, duress of threats, duress of circumstances, and necessity operate by way of confession and avoidance. Both self-defense and necessity are justification. A justification means that there are no denial of the mens rea and the actus reus, it is that they have a logical explanation for their wrongful actions ( agreference no 2 of 1983 and re F.) Duress of threats and duress of circumstances forms aexcusatorydefense. This means that they are denying fault of the offense that was committed. This fault denial, most times rest on a wrongdoerthat would have to put to question before the courts and give evidence to show that that was not his intent. Another contrasting point is that self defence and duress involves action taken because of the unjust threat of harm. Both duress of threats and duress of circumstances/ necessity have degrees of overlapping which may be important where the preventative action taken involves an intentional killing (not a defence of duress but this may be the case of necessity 9/11 terroristattack.) Self defence and necessity are full defence to murder. Take into account the case of the conjoin twin in re F there was the issue of whether there should preserve the life of one twin of to let the situation lie as it is. The courts had to look into the issue whether each of the twins had a right to life under the human rights principle to justify the medical operation. Justifications deny the very wrongfulness of the act, for example self-defence and necessity. Excuses concede the act was wrongful but deny that the actor was blameworthy, and so punishable, for performing the wrongful act. If the defendant is not the blame for his conduct, due to duress it would not have been fair to blame him. In relation to self defence it is not only required for one to act reasonable in threats of harm but also harm that at is a defence to criminal liability if the defendant acts reasonably in the face of immediate crisis.Affirmativedefences such as self-defense negate liability although all the definitional elements of the offence are present.

Contrasting Some contrastingpoints are that duress of threats/circumstances unlike self defence and necessity are not a defence to murder.Duress of circumstances and threats have a limitation under the Hasan principle. It states that it is not a defence to murder, attempted murder and some forms of treason: r v Gotts. In duress the claim to be excused is that it is unfair to expect a person to sacrifice themselves or a person for the sake of conformity with the law even if it involves the victimization of an innocent party. Such action is excused because of the defendants’ reasonable point of view. In self defence the claim is that is socially permissible to defend oneself or others against someone who launch an unjustlyattacked.These actions are justified because society is organized upon the premises that those who attack other people forfeit their right to state protection as against those attacks. The conjoined twins would prove to be necessity not self defence. This put to question as to whether there is any distinction between the two. The medical prractioner in re F was trying to protect Mary therefore the courts ruled it as necessity. I t may seem unreasonable to some as protection and preventing is more akin to self defence.Duress of threats requires threat or serious injury: egvalderamma. On contrast Self defence and necessity does not require death or serious injury: Self defence is only a defence to crimes involving force and is a dull defense, which does not apply to Duress of threats and circumstances.

orcrimesofmurder,at temptedmurderorfor anaccessorytomurder ortreason

2.Wherethedefendant voluntarilyjoinedavio lentcriminalgang/terro ristorganization 3.Wherethedefendant becameindebtedtodr ugdealers The defense of Duress, Self-defense and necessity has shown several similarities and differences. However, there is still a need for reform. For example, duress necessity is not available for crimes of murder or attempted murder. It could be argued that a reasonable person could be coerced to commit murder or attempt murder and should be able to rely on such a defense. Necessity can also be reformed for the medical area to include self defence. Nevertheless, the defenses are quite applicable and necessary for a society that has become very dynamic over the years....