ESSAY - DURESS AND NECESSITY

DURESS AND NECESSITY

Accomplice to murder cannot take advantage of the defence of duress (Howe 1987) and Graham (1982). Ortix (1986); Martin (1989), Wright (2000); Shayler (2001) - Defence of duress may apply where a defendant is forced to commit an offence because of threats of serious injury to either him or someone for whom he is responsible for their safety. Evolution of duress of circumstances in the 1980s. Conway (1989) etc; Gillick (1985) HL existence as a general defence rather than hidden defence ‘the lesser of two evils’. In Conway the Court of Appeal said that the fact amounted to duress of circumstance and that duress was an example of necessity and it does not matter whether it is called duress of necessity. A (Children) (2000) Brook LJ’s judgement; Lord Goff in Re F(1990) HL on the limit between defence of necessity and duress of circumstances; R v Dudley and Stephens (1884). Necessity was a defence for murder where for duress of circumstances there is a choice between making and not making personal sacrifice. Clause 43 of the draft Criminal Code, Law Com. No. 177, 1989 For a long time both murder and treason were thought to be crimes so ‘heinous’ that it is so serous that duress could never be excuse them. Circumstances arose, especially apparent in the terrorist age where it a defendant placed under duress who has actually committed murder could be excused. In Lynch, an innocent person actually had a gone to his head when he drove his IRA captives to kill. Clearly he was an accomplice, but he had a gone to his head. In Lynch it was thought a justifiable distinction could be drawn between principals and accomplices. Simeon LJ, who dissented in that case thought about it and said the distinction is not really satisfactory. What if with a gun at your head, you were forced to push a plunger that that ignited the bomb under a police station some 200 yards away. You are then the principal murder but the same sort of duress seems present. If the laws says duress extends to excuse an accomplice, as Lynch declares, shouldn’t it also in fairness extend to the principal murder where the circumstances are similar? How in such circumstances do we reconcile the decision on necessity (Duddley & Stephens, Re A) and Duress? What is the difference between man-made necessity (duress) and a necessity of nature? Justification for duress. Should duress be a defence at all. Difficulty in extending duress to murder and treason. Lord Simmon’s extensive, dissenting, treatment of this point in Lynch (1975) AC 653 (very impressive). Law in the round, the similar, if not identical defence of necessity.

Self defence. Abortion Act 1967 .Exception to criminal liability or justification for performing an abortion was based on Bourne (1938) and Newton and Stungo (1958). Terminally ill and suffering patients – Adams (1957); House of Lords in Bland; Gallick v West Norfolk and Wisbech AHA (1985) HL. Reluctance – Dudley and Stephens (1984); Southwark London Borough v Williams (1971). Duress of circumstances accepted but cannot be raised for the charge of murder of attempted murder Howe (1987 HL; Gotts (1992). Requires discussions along the line clearly marked in Re A (Co-joined Twins). It requires speculation. The point about choosing between two potential victims on the basis of preference for males. Would it have been fairer had J chosen L to survive by tossing a coin. It seems fairer to take into account the fact that K was pregnant then there is a possibility that two lives rather one could be saved. Speculation is such matter is law – Dudley & Stephens, Re A Re Diane Pretty and, particularly, the US case of US v Holmes. The requires a fairly general discussion on the defence of necessity and not an extended accounts of the facts of Re A (Co-joined Twins). Whether there is general defence of necessity in English law is unclear since first-year students commonly suppose the answers are clear. Give your reason for saying what the law is. Dudley & Stephens held that necessity was not a defence to murder; yet DPP v Lynch held that duress was a defence to murder, at least as a participant. How do you distinguish from circumstances that give rise to duress from those that give rise to necessity? Only unlawful homicide is murder. What are the ingredients of lawful murder. If you want to answer this question you must be prepared to speculate