SUPERVENING DEFENCES - Part 2: DURESS AND NECESSITY A. Introduction. 1. Duress and necessity distinguished from self-defence and prevention of crime. Duress and necessity concern situations where D's actions are not directed against an attacker, but against an innocent party; someone we can describe as a bystander. The issue is always: Ought D to have resisted the situational pressure on him to hurt this innocent party; and if so, can we blame him for making the wrong choice? 2. The concepts of duress and necessity. Duress by threats is available to D when he is faced with a duressor's demand, backed by threats of a certain kind, to perform a particular criminal act, and D performs this act. Duress of circumstances applies in situations where D breaks the law to evade a threat of a certain kind, whether this threat emanates from another human being or from surrounding circumstances. In the latter case, the defence of duress of circumstance shades into necessity; and the case law does not distinguish the two concepts, using phrases such as "necessity of circumstance". Duress is often rationalised as recognising that D's choices were severely constrained. However, the constraint is not one of overwhelming physical force which precludes agency. Rather, D is faced with a moral dilemma: "Through no fault of his own, D is placed in the difficult predicament of having to choose between abiding by the law and becoming a victim of violence, or breaking the law in order to protect himself or another from the threat of serious assault or mortal danger." (LRC for Ireland, LRC CP 39-2006 on Duress and Necessity, p.3). 3. Mapping duress and necessity on the concepts of justification and excuse. As regards necessity, it is often suggested that D's actions were morally justified, even though the cost of these actions was borne by an innocent party. As regards duress, the weight of argument goes towards showing that we should not blame D for what he did (though in some cases of duress it would also be arguable that D made the right choice, ie when he drives above the speed limit rather than being shot in the leg by a duressor.) Reading: . J. Dressler, "Duress", in J. Deigh and D. Dolinko (eds.), The Oxford Handbook of the Philosophy of Criminal Law, pp. 269-298. . lan Dennis, "On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse", (2009) Crim. Law & Phil. 29-49. 1
B. DURESS BY THREATS 1. Rationale. G. Fletcher, "The Individualisation of Excusing Conditions" (1974) 47 S.Cal.L.R. 1269, at 1308: "an expression of compassion for one of our kind caught in a maelstrom of circumstances". 2. Preconditions. Graham [1982] 1 All E.R. 801 (CA). The CA proposed the following test: Was D impelled to act as he did because: (1) as a result of what he reasonably believed the threatening party had said or done, he had good cause to fear that if he did not so act