The Terms Necessity and Duress of Circumstances Are Merely Alternative Ways of Describing the Same Defence - Case Study Example

The terms 'necessity' and 'duress of circumstances' are merely alternative ways of describing the same defence. Introduction. Necessity and duress of circumstances, as used in criminal law defence, are merely alternative ways of describing the same type of defence. Generally, in every civilized society, actions that are punishable by law are deemed as crime, and are considered to be harmful to the community. These offences are predefined in the statutory laws, and violation of such statutory laws attracts penalty, which is, delineated in the statutes." Brandt, The Principles of the Criminal Law, p.282 Based on the first impression, a criminal justice system provides for constituents of crime and criminal law is one which is enacted for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes punishment to be imposed for such conduct. "It includes the definition of specific offenses and general principles of liability." Black's Law Dictionary, 5th Ed. Apart from other actions that lead to harm to the community, and for which civil responsibility can be fixed, "criminal law is the primary instrumentality for preventing people from intentionally or recklessly destroying life and property" Simester, A P. and Sullivan, G. R. Criminal Law: Theory and Doctrine (2004) 2nd edition, (revised 2004) Hart Publishing. "Acts of harming then are the direct objects of the criminal law, not simply states of harm as such." Feinberg, The Moral Limits of the Criminal Law. Vol. I: p.31. Criminal liability and Defence. Criminal liability can be ascertained from two basic constituents of an action: "actus reus (actually doing an act of a criminal nature), and mens rea (the intention to carry out a criminal act)." Ashworth, A. (2003). In some criminal actions, the rule of strict liability is applied even if one of above is missing like in cases murder, assault damage to the property etc. However, common law principles provide for a defence to the accused. "The defendant is now seen as possessing a moral right to defend his autonomy, which is rendered superior to the assailant's rights by assailant's aggression." Ashworth, A (2003). The defences of necessity and duress of circumstances. Necessity and duress of circumstances are both defences based on excuse or justification. The main characteristic in the defence of justification available to the accused the main factor is that the act can be tolerated by society. According to Fletcher, this utilitarian attitude towards the non-punishment of harm-causers is supplemented by the intuitions of justice and retribution, to give an accurate account of the theory of justification. Ibid at pg. 285. Simon-Brown J elaborated upon English law on the "necessity" defence. He opined that English Law does in extreme circumstances, recognize a defence of necessity. It can arise from objective dangers threatening the accused or others in which case it is conveniently called "duress of circumstances". Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: (1) Was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious injury would result' (2) If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted' If the answer to both these questions is yes, then the jury could acquit, and a defence of necessity would have been established. Duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased. For pleading defence of duress, there should be direct nexus between commission of the offence and threat to the accused. In other words, there should be no other way for the accused but to commit the crime. The requirements for a defence of duress of circumstances was explained by the Court of Appeal in R v Coles (14) where it was pleaded by the defendant accused that he committed robbery because of the inability to reply money lenders and was under the threat with his family. His plea of duress was not accepted because the perpetrator had not nominated the offences, which he had committed. The test applied was that for pleading defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury. ' In reference to Lord Denning's statements in Southwark LBC v Williams (15), Smith and Hogan, in their book "Criminal Law" (16) observed that probably it is now the law that if the taking or the entry was necessary to prevent death or serious injury through starvation or cold there would be a defence of duress of circumstances; but if it were merely to prevent hunger, or the discomforts of cold or homelessness, there would be no defence. Similarly in R v Pommell(17) the Court of Appeal held that the limited defence of duress of circumstances, developed in English law in relation to road traffic offences, was closely related to the defence of duress by threats and applied to all crimes except murder, attempted murder and some forms of treason. In the case of State v. Kelly (18) where a battered woman stabbed and killed her husband torturing her for a considerable period of time, it was held that the defence of duress was available to her. Thus, it would be apparent from the above, defence of duress and defence of necessity are similar insofar as they circumstances necessitating both the defences are that there should be close proximity and direct and immediate connection between the circumstances and the crime. Thus there is no significant difference between the defence of duress and necessity. So the question must be faced whether there is a sustainable distinction in principle between "necessity" and "duress" as defences to a charge of murder as a principal. Alternative solutions. The debate regarding the defence of necessity and duress and its applicability to particular circumstances in which a defendant committed crime has long been necessitated by the fact that English Courts did not recognized the defences based on the doctrine of strict liability. (20). However, of late, there has been a significant shift in the approach of the court as seen above. The Law Commission constituted in 1974 in the United Kingdom proposed that that a general defence of necessity be introduced into English law. However, the Law Commission (1977) rejected the idea completely and recommended its abolition. According to its report, such a defence to a charge of murder could effectively legalize euthanasia in England. It felt that specific statutory provisions already covered those areas where the defence might be most needed. The Law Commission (1985) referred to these "totally negative" proposals and said that it would not do to rely on prosecutorial discretion. Instead they proposed a defence of necessity called "duress of circumstances" which would apply to all crimes except attempted murder and murder. The Law Commission (1992) and (1993) proposed that the defence of duress of circumstances be available to all crimes including murder. Keeping in view the increasing societal demands and recommendation of law Commission, the Draft Criminal Law Bill, 1993, (Law Com. No. 218), clause 26 provides: "(1) No act of a person constitutes an offence if the act is done under duress of circumstances. (2) A person does an act under duress of circumstances if- (a) he does it because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another, and (b) the danger that he knows or believes to exist is such that in all the circumstances (including any of his personal characteristics that affect its gravity) he cannot reasonably be expected to act otherwise. It is for the defendant to show that the reason for his act was such knowledge or belief as is mentioned in paragraph (a)." The defence would not apply to a person who knowingly and without reasonable excuse exposed himself to the danger known or believed to exist; the accused would have the burden of proving that he had not so exposed himself if the question arose. Conclusion. Lord Simon of Glaidsdale in D.P.P. for Northern Ireland v. Lynch, (19) touched the core of the discussion on duress by pointing to the misconceived distinction between 'duress' and 'necessity'. According to him, "where either 'necessity' or 'duress' are relevant, there are both actus reus and mens rea motivations. In both sets of circumstances, there is power of choice between two alternatives, but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable. In both circumstances, the consequence of the act is intended within any permissible definition of intention. The only difference is that in duress the force constraining the choice of action is from a human threat, whereas in "necessity" it can be from any circumstance constituting threat to life (or, perhaps, limb). Thus, 'Duress' is considered merely as a particular application of the doctrine of 'necessity'. Thus, the doctrines of a defence of necessity, and duress, are co-incidental. References. Ashworth, A. Principles of Criminal Law (2003) 4th edition, Clarendon Press. Brandt, The Principles of the Criminal Law, p.282 Black's Law Dictionary, 5th Ed. Simester, A P. and Sullivan, G. R. Criminal Law: Theory and Doctrine (2004) 2nd edition, (revised 2004) Hart Publishing. Feinberg, The Moral Limits of the Criminal Law. Vol. I: p.31 Ormerod, D (2005), Smith and Hogan Criminal Law, 11th Edition, Butterworths. Jonathan Herring: Criminal Law: Text, Cases and Materials (2005) Oxford: Oxford University Press. Michael J Allen: Textbook on Criminal Law (2005) 8th edition, Blackstone Press; Andrew Ashworth: Principles of Criminal Law (2003) 4th edition, Clarendon Press. A P Simester & G R Sullivan: Criminal Law: Theory and Doctrine (2004) 2nd edition, (revised 2004) Hart Publishing. C M V Clarkson & H M Keating: Criminal Law: Text and Materials (2003) 5th edition, Sweet & Maxwell. Richard Card: Card, Cross & Jones - Criminal Law (2003) 16th edition, Butterworths. William Wilson: Criminal Law (2005) 3rd edition, Longman. Michael J Allen: Textbook on Criminal Law (2005) 8th edition, Blackstone Press Andrew Ashworth: Principles of Criminal Law (2003) 4th edition, Clarendon Press. A P Simester & G R Sullivan: Criminal Law: Theory and Doctrine (2004) 2nd edition, (revised 2004) Hart Publishing Brandt, The Principles of the Criminal Law, p.282 Black's Law Dictionary, 5th ed. A P Simester & G R Sullivan, Criminal Law: Theory and Doctrine (2004) 2nd edition,(revised 2004) Hart Publishing. Feinberg, The Moral Limits of the Criminal Law. Vol. I: Harm to Others, Andrew Ashworth, Principles of Criminal Law (2003) 4th edition, Clarendon Press. Michael J Allen: Textbook on Criminal Law (2005) 8th edition, Blackstone Press Morawetz, Thomas. Reconstructing the Criminal Law Defences: The Significance of Justification ((1986) Vol. 77 Journal of Criminal Law & Criminology 277 Alldridge, Peter. The Coherence of Defences. [1983] Criminal Law Review 665 at pg. 665 Fletcher, George. The Right and the Reasonable. [1985] Harvard Law Review 949 at pgs.957-962. R v Coles (1994) Crim LR 582 R v Martin (1989) 1 ALL CR 562 D.P.P. for Northern Ireland v. Lynch (1975) AC 653 R v Dudley and Stephens (1884) 14 QBD 273 Read More