General Defenses in Law: Duress and Necessity

Overview

• Focus on two general defenses: Duress and Necessity
• Duress: Defendant claims forced to commit a crime
  • Types: Duress by threats, Duress by circumstances
• Necessity: Committing crime necessary to avoid greater harm

Duress

Duress by Threats

• Common form where threats are made against the defendant or a close person
• Definition from the case of Whelan:
  • "Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as justification for acts which would otherwise be criminal."
• Complete Defense if successful (no liability)
• Difficult to prove with many strict requirements
• Limitations:
  • Not available for crimes of Murder (Howe case)
  • Not available for Attempted Murder (Gotts case)

Key Cases

• Howe and Bannister: Duress not accepted for murder, overruled previous case Lynch
• Gotts: Attempted murder case where duress failed

Requirements for Duress

1. Threats of Death or Serious Harm:

   • Must target defendant or someone close
   • Case: Valderrama Vega (threats to kill sufficient)

2. Immediacy:

   • Threat must be unavoidable and imminent
   • Case: Gil (threat not imminent, could involve police)

3. Particular Offense:

   • Threat direct to commit a specific crime
   • Case: Cole (threat to repay debt, not commit crime)

4. Not Self-Induced:

   • Defendant shouldn’t voluntarily put themselves in duress situation
   • Case: Hassan (association with gangs)

Test for Duress

• Established in Graham:
  1. Subjective: Belief of death or serious injury if no compliance
  2. Objective: Would a sober person of reasonable firmness act similarly?
• Criticism: Fails vulnerable individuals or those with mental health issues
• Bowen: Low IQ not considered in objective test
• Hegarty and Horn: Psychiatric vulnerabilities ignored

Duress by Circumstances

• Typically in driving offenses
• Test from Martin:
  • Subjective and Objective tests similar to Graham
  • Cases: Martin (wife threatened suicide), Conway (chased by plainclothes officers)

Necessity

Overview

• Rarely successful, often overlaps with duress of circumstances
• Recognized in R v Conjoined Twins:
  • Unique case, not precedent-setting
  • Test suggested for necessity:
    1. Act necessary to avoid inevitable, irreparable evil
    2. No more done than necessary
    3. Evil inflicted not disproportionate

Key Cases

• Dudley and Stevens: Necessity not accepted for murder
• Southwark LBC v Williams: Necessity for squatting rejected
• Shayler: Leaking secrets not seen as necessity

Conclusion

• Both defenses have strict limitations and tests
• Duress more commonly seen in scenarios or essays than Necessity
• Important to understand cases and requirements for both defenses
• Essay planning and case evaluations are crucial for mastering the topic
• Students encouraged to engage with additional materials and exercises to solidify understanding.

Study Tips: Stay updated with case laws, make connections between duress and necessity, and practice application scenarios.