It is difficult to apply general defenses to a specific crime since there is a number of a defense which is available to all different crimes.
General defenses to particular crimes, there exists a number of defenses available to all crimes. However, it is difficult sometimes to apply general defenses to particular crime. The two defenses that am going to describe are Duress and Necessity.
DURESS AND NECESSITY
Duress as a defense and how it is related to necessity has been always been discussed and conflicts arise as to how far can it be extended and its limitation. Recently the defense of duress of circumstances has raised arguments as to its limitation and conditions but also about the development of duress and necessity which is uncertain.
The law on duress as a defense, and its related from necessity, has long been a source of great controversy as to where its boundaries as a defense should extend and where they should be limited in particular, in more recent years the similarly linked defense of duress of circumstances has caused some argument as to its limits and conditions and one of the important points connected with the development of duress and necessity the law on this issue remains. Uncertain and so it is worth looking at the defense thoroughly so as to describe the development of “Duress” and “necessity” with its reason.
The development of the defense
As a defense, duress in a primary form of threats has always been accepted and duress of circumstances has been recently accepted as a defense when the defendant is forced to commit a crime. In the case of Kitson (1955) the defense of necessity and duress of circumstances was not applied. In this case the defendant who drunk a lot fell asleep in the passenger’s seat of a car and woke up to find that the vehicle was going downhill. Also, the defendant didn’t have his driver’s license and to prevent the car crash, he took control of the car and stopped it. The defendant was charged and convicted for driving without license and driving recklessly.
Although duress in its primary form of threats has long been accepted as a defense due to the surrounding circumstances, it has been recently accepted that a defendant may be forced to commit a crime and this is known as duress of circumstances.
Until the late 1980’s when the defense was not officially formed. It often considered one of the starting points of the defense was the case of Kitson (1955). In this case, the defendant, having drunk a lot, fell asleep in the passenger’s seat of a car, and awoke to find it coasting downhill. He didn’t have driver’s license. But in order to prevent a crash, he took the control of the car and brought it to a halt. The defendant was charged and convicted with reckless driving and for driving without a license. The defense of necessity and duress of circumstances was not yet allowed.
But in the case of Willer (1986), the defendant was driving his car with other passengers in it was violently threatened by a group of youths. To escape, the defendant drove along the pavement and went to report the incident at the police station. He was refused the defense of necessity, charged and convicted for reckless driving. On appeal, the court invalidated the conviction made holding that the jury should have been allowed to consider whether or not the defendant was forced to drive so under duress, taking into consideration the circumstances of the situation at that time and later in the case of Conway (1988) was called the defense of duress of circumstances. Here, the defendant was driving his car with a passenger who told him that two men were following him and tried to kill him a few weeks earlier. But the two men were plain clothes policeman. Here also, the court invalidated the conviction for reckless driving and that there was duress of circumstances since the defendant was forced to act as he did just “to avoid death or serious bodily harm to himself or some other person” and so it was, the first case where duress of circumstances has been used.
The first case which made more of an emphasis on the existence of the defence of duress of circumstances was Willer (1986). The defendant, driving his car which held a number of other passengers, drove down a narrow alley and was then surrounded by a group of youths who made violent threats towards them. He had to escape and drove along the pavement and then went straight to report the incident to a police station. He was charged and convicted for reckless driving with the refuse of the defence necessity. On the appeal, the court of appeal quashed the conviction, holding that the Jury should have been allowed to consider whether or not the defendant handing those circumstances been forced to drive under “Duress”. It was not given the full title of defence of duress of circumstances in this case but it was done in the later case of Conway (1988). In this case, the defendant was driving a car and with a passenger with him. After being told by the passenger that he thought the two men running towards the car were two men who had tried to kill the passenger a few weeks earlier. In fact the men were only plain-clothes policemen. Again the court of appeal quashed the conviction for reckless driving, ruling that where the facts established “Duress of circumstances” as in willer as a result the defendant was forced to act as he did “to avoid death or serious bodily harm to himself or some other person”.
It was first case therefore to use the formal title of duress of circumstances as it now known.
The case of Martin (1989) continued to develop the defense further. In this case the defendant had been disqualified from driving, claimed that he had been forced to drive his step son to work (who was late and at the risk of losing his job) because his wife had threatened to commit suicide unless the defendant drove the son to work. Again the court of appeal held the defence of duress of circumstances was available. The court of appeal applied the two stages test of duress of threats from the case of Graham (1982), so as for the defence to success. The two stages are:
Whether defendant compelled to act as he did because of what he reasonably believed he had good cause of fear, serious injury and death.
If so, whether a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way.
The development of the defence of duress of circumstances continued further in many vital cases. For example in the case of Pommell(1995). The defendant was found lying in the bed with a loaded sub-machine gun against his leg at 8 a.m. he claimed at his trial for possessing a prohibited weapon that he had taken it off another man who said he was going to use it “to do some people some damages” and he planned on getting his brother to give the gun next morning. The trial judge held his failure to take the gun to the police straight away prevented him having any defence. However, the court of appeal quashed the convection and held that the defence of circumstances was available for all offences except murder, attempted murder, and treason. By drawing other defence on duress of treats from the case Howe (1987), then it was argued that duress of circumstances seems credible to consider as “DURESS”.
The defence of necessity has been developed from the case of Stephens (1884). In this case the two defendants, another man and a cabin boy were shipwrecked from sea in a small life boat. After nine days without food and seven days without water, the defendant killed and ate the cabin boy. Four days later they were picked up by a passing boat and on returning to England, were tried and convicted of murder. The divisional court upheld the conviction, with the Lord Coleridge ruling that were necessity allowed as a defence. Since this case, there have been almost no cases binding on the English legal system which have allowed necessity as defence in its own right.
However, there has been an exception in the case of Bourne (1938). In this case , a 14 yrs old girl who had been raped went to a doctor for abortion. Abortion was illegal at this time, but because of the fear of the death of girl, if she gave birth to the child. The doctor did the abortion. The defence of necessity was accepted and he was acquitted of the charge.
There are a number of criminal cases where necessity has never been allowed as a defence. For example: Dydley, Stephens and Bourne. But there have been a number of civil cases in which the defence has been allowed. For E.g. the first civil case was RE-MENTAL patient (1990) and another recent case is RE children (2000).
In the Re-MENTAL patient case (1990) a girls with severe mental disability had formed a sexual relationship with another metal patient and the health authority applied to the courts for a declaration that it would be lawful to sterilize her as doctors felt she would not understand pregnancy and that it would be disastrous for her precarious mental health. The girl’s mother supported the application, but the solicitor, who acted on behalf of the girls as she could not consent to the treatment herself, thought that performing such an operation would be illegal. The House of Lords granted the application with Lord Brandon saying that it may cases it would be the “common” duty of the doctors to operate.
In this recent RE children (2000) case of the joined twins the court held that, in the special circumstances of that case, it was lawful to kill the weaker twin (B) in order to save the life of the stronger (A). But this was not a simple choice between A and B which the court would have been unwilling to make. The situation presented to the court was that if the operation was performed B would be killed but A would probable live. But if the operation was not performed, both would die. Brooke LJ based his decision on necessity.
The three decisions on requirement for the defence were stated to be:
The act is needed to avoid inevitable and irreparable evil.
No more should be done than is reasonably necessary for the purpose to be achieved
The evil inflicted must not be disproportionate to the evil avoided
The defence of duress continues to accepted and developed by the court in recent cases, whereas it counterpart of necessity seems very limited in its own respective reform.
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