duress of circumstances and necessity

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  • Duress of circumstances and necessity
    • duress of circumstances
      • definition
        • where the threats come the circumstances rather than a direct threat
      • defence evolved in last 25 years because of limits created by duress of threats
      • two part test - Martin (1989)
        • was D compelled to act as he did because he reasonably believed he had good reason to fear death or serious injury?
        • if so, would a sober person of reasonable firmness sharing the characteristics of D have acted in the same way?
      • now extends beyond driving offences
        • Willer (1986) - w and passenger in car surrounded by threatening youths. w drove slowly on pavement to escape
          • CA said jury shouldbe able to consider whether W drove under some kind of duress
      • must be threat of death or serious injury
        • Conway (1988) - D's passengers saw men and thought they had shot at him so D drove off fast
          • CA quashed convictions saying duress possible if from objective perspective acting to avoid threat of death or serious injury
      • extent of defence
        • Cairns (1999) - man threw himself onto bonnet of D's car. D felt threatened so drove off with man on bonnet
          • D braked and man fell under car and badly injured
            • convictions quashed as reasonably perceived threat or serious injury or death
        • Pommell (1995) - found by police with gun in bed during drugs raid. P said taken gun from man and going to hand it in
          • CA held that duress of circumstances could be available for all crimes accept, murder and attempted murder
    • necessity
      • definition
        • D acts prevent a worse evil happening
      • very similar to duress of circumstances, but court been reluctant to recognise it as a defence in its own right
      • methods of avoiding this defence have been used
      • necessity now exists but remains potentially limited in scope
      • Dudley and Stephens (1884) - D and S adrift at sea without food and water so ate cabin boy
        • no defence as no life worth more than another
      • Re F (1990) - health authority applied for declaration to sterilise F, a severely mentally disabled patient at risk of pregnancy
        • HL granted declaration as lawful duty of doctors to act based on necessity
      • Re A (2000) application for declaration of separation of twins so one lives but one dies
        • Lord Brook approved of the following four principles
          • act was done only in order to avoid consequences which would not otherwise be avoided
          • those consequences, if they had happened would have inflicted inevitable and irreparable evil
          • no more was done than was reasonably necessary for that purpose
          • evil inflicted by it was not disproportionate to the evil avoided
      • Shayler (2001) - past member of MI5 charged with breaching OSA 1989
        • no defence of necessity as Lord Wolf used same test as Lord Brook in Re A
        • suggested that duress of circmustnces and necessity are interchangeable


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