NECESSITY AND DURESS OF CIRCUMSTANCES

Necessity and Duress of Circumstances



Necessity and Duress of Circumstances

Introduction

The law on duress as a defence, and its related form of necessity, has long been a source of great controversy as to where its boundaries as a defence should extend and where they should be limited. In particular, in more recent years the similarly linked defence of duress of circumstances has caused some argument as to its limits and conditions, and one of the important points connected with this is whether or not it is one in the same thing as either duress or necessity. The case law on this issue remains uncertain, and so it is worth looking at the defence thoroughly so as to determine if it matters or not whether duress of circumstances is called 'duress' or 'necessity'.

Q. The distinction between duress of circumstances and necessity has been largely ignored or blurred by the courts. In Re A (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 however, the law has tended to treat both duress of circumstances and necessity as the same. Explain and critically evaluate this statement.

Although duress in its primary form of threats has long been accepted as a defence, it is only more recently that it has been accepted that a defendant may be forced to commit a crime due to surrounding circumstances in order to prevent a greater evil from occurring, known as duress of circumstances. Whilst the defence was not officially formed until the late 1980's, often considered one of the starting points of the defence was the case of Kitson (1955). In this case, the defendant, having drunk a lot, fell asleep in the passenger seat of a car, and awoke to find it coasting downhill. Not having a drivers' license himself, but in order to prevent a crash, took control of the car and brought it to a halt. He was charged and convicted with reckless driving and for driving without a license, and with the defence of necessity being discussed yet refused, which will be looked at more later, the defence of duress of circumstances was not yet allowed. The case of Willer (1986) was the first case which made more of an emphasis on the existence of the defence of duress of circumstances. In this case, 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. Willer, as the only was to escape, drove along the pavement and then went straight to the police station to report the incident. He was charged and convicted for reckless driving, with his defence of necessity being refused, but on appeal, the Court of Appeal quashed the conviction, holding that the jury should have been allowed to consider whether or not the defendant had, in those circumstances, been forced to drive under compulsion, i.e. under 'duress'.

The defence of duress of circumstances was not given ...