Duress of Circumstance and Necessity

Duress by Circumstance

External factor of the circumstances dictates the crime

Elements of defence

1. There must be a peril of death or serious injury

2. Whether the defendant acted reasonably will be judged objectively (Apply Graham 2-part test)

3. There was no avenue of escape the defendant could have taken

4. Threat need not be immediate but it must be imminent.

5. The defendant cannot use the defence it they have voluntarily laid themselves open to the duress.

Graham 2-part Test

(a)Was the defendant compelled to act because they reasonably feared serious injury or death? (subjective and objective test)

(b)Would a sober person of reasonable firmness have responded in the same way? (objective test)

Complete or Incomplete?

Complete defence, except for murder.

Willer 1986

Driving under compulsion is a form of duress.

Conway 1988

If external circumstances relate to the passenger, then defence is not available. D need to be acting in order to avoid threat of death of serious injury.

Martin 1989

Duress of circumstance applied to wife threatening suicide - peril related to the wife but D was clearly acting in order to avoid threat of death of serious injury.

Pommell 1995

Confirmed duress of circumstance available for all offences except murder and attempted murder.

Cairns 1999

Perceived threat is enough – so 2-part Graham test can be applied. 

Abdul-Hussain 1999

External threat need not be immediate, but it had to be imminent.

Duress of Necessity

1. The act must be done only to prevent an act of greater evil.

2. The evil must be directed towards the defendant or a person or persons for whom they are responsible

3. The act must be reasonable and proportionate to the evil avoided.

R v Dudley and Stephens Principle

There must be circumstances which force a person to act in order to prevent a worse evil from occurring.

Jodie and Mary 2000

The judge said the situation was one of necessity and the doctors in this case could operate, killing the weaker Mary and saving Jodie.

Why is Jodie and Mary 2000 so important?

This means that necessity could be a defence, even to a potential charge of murder.