Difference between necessity, duress and self-defence PDF

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Difference between necessity, duress and self-defence...

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What is the difference between necessity, duress and self-defence? Private defence – D must be compelled to defend himself/another against attack Duress – D must be avoiding imminent death/serious injury Necessity – concern is for avoiding a greater evil

-Necessity/duress of circumstances? Martin (Colin) (1989) 88 Cr. App. R. 343 ‘English Law does, in extreme circumstances, recognise a defence of necessity. Most

3 Defences Criminal Law

commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful threats or violence of another.’ (per Simon Brown J at 345)

Pommell [1995] 2 Cr. App. R. 607 ‘The strength of the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised…but it has, in English law, not given rise to a general defence of necessity…’ (per Kennedy LJ at 613)

Shayler [2001] 1 WLR 2206 Court of Appeal stated that ‘apart from some medical cases like Re F the law has tended to treat duress of circumstances and necessity as one and the same’ (Lord Woolf CJ at 2226)

For commentary: Smith, J. C. [2001] Crim LR 986 Hasan [2005] 2 WLR 709 Lord Bingham said ‘the only criminal defences which have any close affinity with duress [of threats] are necessity, where the force or compulsion is exerted not only by human threats but by extraneous circumstances, and, perhaps, marital coercion under s.47 of the Criminal Justice Act 1925’ (at 716) However, there are clear differences between the two, such as the fact duress is not a defence to murder/attempted murder, whereas (following Re A), necessity can be. Duress is also generally accepted to be an excuse, but necessity is a justification.

Jones [2005] 1 Cr. App. R. 12 Quayle [2006] EWCA Crim 1415

For commentary: Reed, A. ‘The defence of necessity and the supply of cannabis’ [2005] Criminal Lawyer 1; Gardner, S. ‘Direct Action and the Defence of Necessity [2005] Crim LR 371...