Duress and Necessity

1.0 Duress
Duress applies as a defence where a person commits a crime as a response to a threat of death or
serious injury either to themselves or another.

The defence of duress is a general defence but there are certain limitations on its use. It cannot be
raised in defence to murder, attempted murder or by any person who has participated in killing.
In cases where the defence of duress is pleaded successfully it has the effect of absolving the
defendant of liability. This is because whilst he clearly possesses the requisite mens rea for the
offence, in carrying out the actus reus they are acting under compulsion and not through choice,
thus it is not a voluntary act. It can be seen in this respect that duress differs from those defences
such as intoxication, automatism and mistake which act to negate the mens rea. It also differs
from justificatory defences such as self defence as it does not justify the crime but instead offers
an excuse for the behaviour of the defendant.

1.1 Types of Duress

In criminal law the defence of duress takes two different forms:

1. Duress by threats
2. Duress by circumstance

1.1.1 Duress by Threat

The defence of duress by threat was set out in A-G v Whelan [1993] IEHC 1 as arising in
circumstances where the defendant was ordered to commit an offence whilst subject to threats of
immediate death or serious personal violence so great as to overbear the ordinary powers of
human resistance.

1.1.2 Duress by Circumstance

Duress of circumstances arises where it is not a person that provides a threat to the defendant but
the nature of the situation. It might be that another person creates the threatening situation but
unlike duress by threat there is no requirement that a person specifies to the defendant that a
crime must be committed, so long as there is a sufficient link between the situation and the
crime.

1.2 Elements of the Defence

The defence applies similarly in relation to both duress by threat and duress of circumstances and
both are governed by the same criteria. Accordingly, most of the cases are authority for both
forms of the defence.

The defence was set out in R v Graham [1982] 1 All ER 801. It set out two elements to the
defence: a subjective element and an objective element. These are:

1. Was the defendant or might the defendant have been induced to act as he did because he
feared that if he did not, death or serious injury would result to him, an immediate
relative or someone he is responsible for?
2. Would a sober person of reasonable firmness, sharing the defendant’s characteristics have
acted in the situation in the way as he did?

If these elements can be shown then the following must also be shown for the defence to
succeed:

 There must be immediacy, and;

 The defendant must not have missed an opportunity to escape the threat without
committing a crime.
Finally, even where this has been established, following the ruling in R v Hasan [2005] 2 AC
467 the defence will be excluded where a person who voluntarily becomes involved in or
remains involved with people who are engaging in criminal activity and ought to reasonably
have foreseen the possibility of becoming the subject of compulsion by them or associates
known to them. The House of Lords in handing down the ruling in Hasan were concerned that
the defence was being too broadly applied to the benefit of defendant’s who were involved in
drugs and organised crime. The House sought to restrict the defence and stop the increasing use
of the defence in these situations.

Case in Focus: R v Hasan [2005] 2 AC 467

The defendant, Hasan, worked for an escort agency ran by a lady named Taeger. The agency
offered prostitution services to its clients and Hasan would drive the women to the male
customers and acted as a minder.

During Hasan’s employment, Taeger became involved with a man named Sullivan who was a
well-known drug dealer with a reputation for violence. Sullivan took over most of Hasan’s work
escorting the ladies and a bad feeling existed between the two of them as a result of this. Hasan
knew that Sullivan was dangerous and violent as Sullivan had previously bragged to him about 3
murders he had committed recently.

One evening Sullivan and an accomplice ambushed Hasan outside his house. Sullivan ordered
Hasan to carry out a burglary on one of the escort agency’s clients. Sullivan stated that his
accomplice would go with Hasan to make certain that the burglary was carried out and if it
transpired that Hasan did not carry out the burglary, Sullivan would bring harm to Hasan and his
family.

Hasan followed the orders but was caught and convicted of the burglary. He sought to argue
duress but this was rejected by the jury. He appealed on the basis of misdirection and the case
went all the way to the House of Lords.

The House of Lords stated that the conviction was correct. Lord Bingham stated at paragraph
499 that “the policy of the law must be to discourage association with known criminals, and it
should be slow to excuse the criminal conduct of those who do so. If a person voluntarily
becomes or remains associated with others engaged in criminal activity in a situation where he
knows or ought reasonably to know that he may be the subject of compulsion by them or their
associates, he cannot rely on the defence of duress to excuse any act which he is thereafter
compelled to do by them.”

In all cases, the question is for the jury to decide whether the threat that the defendant was
exposed to was serious enough so as to outweigh the seriousness of the offence committed. For
example, a threat of a slap would not justify the committing of a robbery but threat of
causing grievous bodily harm would likely justify the offence of theft.

1.3 The Defence Explained

 Specified crime
 Immediacy
 Facing a threat of death or serious injury
 To the defendant or a person for whom he has responsibility
 The threat must overbear the ordinary powers of human resistance.

Specified crime

In relation to duress by threat, the threat issued must be accompanied by instruction to commit a
specified crime. A threat demanding money or circumstance where money is needed which the
defendant decides to avoid by committing a crime to gain the money is insufficient.

Case in Focus: R v Cole 1994 Crim LR 582

The defendant, Cole, borrowed a sum of money from a violent loan shark. This is a lender that
charges exceptionally high amounts of interest on the sum borrowed. The amount due got out of
hand and the loan shark threatened to inflict serious injury on Cole and his girlfriend if the
money was not sharply repaid. Cole resorted to bank robbery to raise the necessary funds. In
response to his charge for the offence he attempted to raise the defence of duress. The Court held
that there was an insufficient link between the loan and the crime. He was not told to steal the
money at any point by the loan shark, and therefore the defence failed.

Immediacy

The requirement for immediacy is broad and does not require immediacy in the strict sense of the
word.

Case in Focus: R v Hudson and Taylor [1971] 2 QB 202

The two female defendants had witnessed a fight which the participants were prosecuted for. The
participants of the fight who they had been asked to give evidence against were violent
individuals with a well-connected group of equally violent associates who repeatedly threatened
the two defendants with serious harm if they gave evidence. On the day of the trial these people
turned up in the public gallery to watch the defendants. Scared, the defendants lied and made
sure that the participants were not implicated in the fight. They were charged with perjury. The
defence of duress initially failed as there was no immediacy. There was no way that they could
be harmed in a court room full of police and witnesses. They appealed successfully with the
Court holding that there must be a present threat but the threatened harm need not follow
instantly. Lord Parker read Widgery LJ’s judgement and stated at paragraphs 206-207 “It is
essential to the defence of duress that the threat shall be effective at the moment when the crime
is committed. The threat must be a "present" threat in the sense that it is effective to neutralise
the will of the accused at that time. Hence, an accused who joins a rebellion under the
compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost
their effect and his own will has had a chance to re-assert itself. Similarly, a threat of future
violence may be so remote as to be insufficient to overpower the will at that moment when the
offence was committed, or the accused may have elected to commit the offence in order to rid
himself of a threat hanging over him and not because he was driven to act by immediate and
unavoidable pressure. In none of these cases is the defence of duress available because a person
cannot justify the commission of a crime merely to secure his own peace of mind.”

Case in Focus: R v Abdul Hussain [1999] Crim LR 570

The defendants were Shiite Muslims living in Iraq who had been sentenced to death after giving
evidence during torture. They had escaped to Sudan but feared that they were to be deported and
sent back to Iraq to face their punishments. They hijacked and aeroplane and took it to London
where after negotiations they surrendered to the UK authorities. Initially it was ruled that the
defence of duress could not apply as there was no immediacy. On appeal the Court however held
that the execution of a threat need not be immediate and in this case there was sufficient
immediacy for the defence to be applied.

Where there is an opportunity to take evasive action to negate the threat then Hasan suggests that
this will negate the immediacy.

Facing a threat of death or serious injury

This element is fairly self-explanatory and sets out that the threat that the defendant faces must
be one of death or serious injury. Blackmail or other threats to reveal sensitive information are
not therefore sufficient but may be taken into account by the courts where they exist alongside
relevant threats of death or serious injury.

Case in Focus: R v Valderamma-Vega [1985] Crim LR 220

The defendant was practising homosexual activities during his marriage to a woman. He was
confronted by threats to reveal this to his wife, alongside threats of serious injury to the
defendant and his family if he did not participate in the importation of illegal drugs. The Court
initially held that the defence of duress could not apply due to the threats of the information
being revealed by on appeal clarified that these threats could be taken into account in this
instance as they existed alongside threats of serious injury.
To the defendant or a person for whom he has responsibility

As above, this element is clear in that the threat that arises from the individual or the
circumstance must be a threat against either the defendant himself or a person which the
defendant has responsibility for. This would include for example family members.

Case in Focus: R v Shayler [2001] 1 WLR 2206

The defendant worked for Mi5. As an employee of the Intelligence Agency he had signed under
the Official Secrets Act not to disclose information and he was bound by this. In spite of this the
defendant provided a journalist with confidential documents pertaining to national security
issues. The defendant was charged for this but contented that his disclosure had been necessary
to protect the general public who faced a threat from the issues contained in the documents. The
Court dismissed this reasoning and held that he was not entitled to raise the defence of duress as
he had not identified precisely who the potential victims were nor establish any responsibility for
them. Lord Woolf set out an example explaining the reasoning comparing two scenarios, one
where a spy is captured and told his family will be murdered if he does not disclose information
and another where a spy believes that someone somewhere at some time may possibly suffer if
he does not disclose information to the public. He stated at paragraph 67 that “the first is a
situation where almost certainly a defendant would be able to rely on the defence. The second
position is one where a defendant cannot possibly rely on the defence. Mr Shayler falls squarely
within the second position on the spectrum.”

In contrast to Shayler, in some instances the situation existing can place the defendant in a
position where he is responsible for the person in question. Consider the case of R v
Conway [1989] QB 290.

Case in Focus: R v Conway [1989] QB 290

The defendant was driving a passenger in his car a Mr Tonna. A few weeks prior to this Mr
Tonna had been the intended victim in a car shooting where he had been shot at and chased. The
defendant saw that they were being followed and feared instantly that it was the man who had
previously tried to assassinate Mr Tonna. He sped up to the point he was driving massively in
excess of the speed limit and very recklessly. Unluckily for the defendant the car following them
was actually an unmarked police car and he was duly charged with the reckless driving offence.
At trial the defence of duress was refused but this was overturned by the appeal with the Court
holding that the defence should have been allowed before the jury.

The threat must overbear the ordinary powers of human resistance.

The objective arm of the Graham test set out above acts so as to establish whether the threat
faced would cause a reasonable person to act in the same way. The way of establishing that is to
ask whether the given threat was so great that it would overbear the powers of ordinary human
resistance. This focuses on three points:

1. a reasonable belief
2. a good cause of fear
3. a sober person of reasonable firmness, sharing the characteristics of the defendant might
act the same.

In applying this test, some but not all of the characteristics of the defendant may be taken into
account. A recognised medical condition causing the defendant to have a reduced firmness can
be taken into account but a general nervous disposition cannot. In R v Martin [2001] EWCA
Crim 2245, the defendant was a schizoid. This denotes that he had a type of personality disorder
whereby he had a lack of interest in social relationships and preferred a solitary existence with
tendencies towards emotional coldness. This condition meant that the defendant was more likely
to interpret words and actions as a threat. The Court held in this situation that any personal
characteristics relevant to the defendant’s interpretation of the threat should rightly be
considered. R v Bowen [1996] 4 All ER 837 is authority for the fact that age, sex and any
physical disability should be taken into account but not IQ. R v Flatt [1996] Crim LR 576 further
held that any self-induced characteristics could not be given to the reasonable person.
1.4 When can the defence be used
As explained in the introductory notes, the defence of duress is a general defence and is available
to raise in response to most charges, however there are some exceptions. The defence is not
available in the following situations:

 Hasan confirms that the defence is not available in response to a murder charge. R v
Gotts [1992] 2 AC 412 states that the defence is also not available to attempted murder.
However R v Ness (2010) unreported has suggested that the defence may be available in
relation to a charge of conspiracy to murder.
 The defence is not available in response to a charge of treason.
 Following R v Sharp 1987 1 QB 853 , the defence is also excluded in cases where the
defendant of his own will and with knowledge of the nature of the group, joins a violent
criminal gang. However, where the gang is not known to be violent R v Shepherd(1988)
86 Cr App R 47 suggests that duress will not be excluded. Similarly to the gang
exemption, the defence is unavailable where the defendant voluntarily joins a terrorist
group. Hasan suggests this goes further and that the defence will not be available where
the defendant involves himself in criminal activity and the possibility of becoming
exposed to compulsion should reasonably have been foreseen.
 Following on from the above, where the defendant becomes indebted to drug dealers he
will not be able to use the defence.
 Due to the immediacy requirement, the defence will become obsolete in cases where the
defendant had opportunity to or could reasonably have taken evasive action.

2.0 Necessity
2.1 Concept of Necessity
This defence arises where the defendant successfully argues that due to a greater evil, it was
necessary to commit the offence that he carried out. He had a choice between committing a
criminal offence or allowing himself or another to suffer. In the situation the commission of the
offence was the lesser of the two evils. The defence of duress discussed above, especially in
situations of duress of circumstance is a specific form of a necessity defence. Self-defence is
another example of necessity embodied in a more narrowly defined defence. Despite these
allowances for necessity related defences the courts have been reluctant to recognise a general
defence of necessity. The reluctance to recognise such defence can be seen in the historic and
oft-cited ruling of R v Dudley and Stephens (1884) 14 QBD 273.

Case in Focus: R v Dudley and Stephens (1884) 14 QBD 273

The defendants were crew on a boat that was shipwrecked following a fearsome storm. A
number of the crew had to abandon their vessel to board a lifeboat whereupon they were stranded
for a number of days. The food did not last and they were left for over a week without food and 5
days without water. The defendants agreed to draw straws to decide which one would be killed
to save the others. There was a young cabin boy with them who was in too poor a state to
participate. The defendants decided it would be more logical to kill the boy as he was near death
anyway and had the least chance of survival. They slit his throat and fed on him to survive. The
defendants were subsequently rescued and charged with the cabin boy’s murder. They attempted
to raise a defence of necessity to the charge but the Court refused to entertain this.

Speaking at paragraphs 286-287, Lord Coleridge stated “it is admitted that the deliberate killing
of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by
some well-recognised excuse admitted by the law. It is further admitted that there was in this
case no such excuse, unless the killing was justified by what has been called “necessity.” But the
temptation to the act which existed here was not what the law has ever called necessity. Nor is
this to be regretted. Though law and morality are not the same, and many things may be immoral
which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal
consequence; and such divorce would follow if the temptation to murder in this case were to be
held by law an absolute defence of it.”

He continued at paragraph 287-288 that “it is not needful to point out the awful danger of
admitting the principle which has been contended for. Who is to be the judge of this sort of
necessity? By what measure is the comparative value of lives to be measured? Is it to be strength,
or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine
the necessity which will justify him in deliberately taking another's life to save his own. In this
case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill
him than one of the grown men? The answer must be “No””.

Lord Denning echoed the sentiment expressed in Dudley and Stephens in the case of Southwark
London Borough Council v Williams [1971] Ch 734 stating in his judgement that the defence of
necessity would open a door which no man could shut. He cited the example of hunger operating
as an excuse of stealing and argued this would open a way for all kinds of disorder.
Homelessness would be a defence to trespass and no man’s property would be safe. This would
spiral and he questioned where would the line be drawn. He stated therefore that it was necessary
for the courts to take a firm stand for the sake of law and order and trust in such cases that
charitable and good human nature would prevail.

2.2 Requirements of the Defence

The idea of a general necessity defence was discussed Gillick v West Norfolk and Wisbeck Area
Health Authority [1986] AC 112 in relation to it being necessary for a doctor to prescribe
contraception to an underage girl, however this was only obiter discussion. The defence was then
recognised by Lord Goff in Re F (Mental patient sterilisation) [1990] 2 AC 1 where he stated
that there was indeed a defence of necessity and applied it in handing down his judgement.

Case in Focus: Re F (Mental patient sterilisation) [1990] 2 AC 1

The patient, F was an adult woman who had suffered from a severe mental disability since she
was a baby. She had been voluntarily incarcerated in a psychiatric hospital since she was a
teenager and had the verbal and mental capacity of a toddler. During her stay in the hospital she
developed a sexual relationship with another patient. The staff were very concerned at the impact
a potential pregnancy would have on her and knew that she would not be able to raise a child.
Trying to get her to use contraceptive was not an option due to her limited understanding. The
hospital applied to the Court seeking a declaration for lawful sterilisation which would need to
be undertaken in the absence of F’s valid consent as she did not have the capacity to give it. The
Court granted the declaration and in doing so established that there was no power for the court to
give consent on behalf of F so to prevent the unlawful grievous bodily harm the doctors would
need to raise a defence. The judges considered that in this circumstance the principle of necessity
could be given recognition.

Following the recognition of the defence, the case of Re A [2001] Fam 149 took this further,
confirming the decision in Re F and holding that it could even be used as a defence to murder.

Case in Focus: Re A [2001] Fam 149

The case involved two conjoined twins, Mary and Jodie. Jodie strong and capable of independent
existence but Mary was very weak and depended entirely on Jodie to keep her alive. Doctors
were certain that if left conjoined Mary would cause too much of a strain on Jodie and they
would both be unable to survive. They believed that operating to separate them would kill Mary
but it would give Jodie a high chance of living a good quality, independent life. The parents
refused to allow this but the doctors applied to the Court for a declaration that this operation
would be in the best interests of the children and lawful, even though it was inevitable that it
would cause Mary’s death. The Court held that the operation could be carried out lawfully.

The reasoning behind the decision in Re A was that the Court believed the operation was
necessary, and thus the doctors would be afforded the defence in relation to the operation. The
requirements that must be filled in order for this defence to apply were set out by Lord Justice
Brooke. These are that:

1. the act is needed to avoid inevitable and irreparable evil;

2. no more should be done than is reasonably necessary for the purpose to be achieved, and;
3. The evil inflicted is not disproportionate to the evil avoided.

Following R v Quayle [2005] EWCA Crim 1415, a fourth criteria was addded:
(iv) The necessity must have arisen in extraneous circumstances

And finally, following the ruling in Shayler, a fifth criteria became necessary:

(v) The evil must be directed towards the defendant himself or someone who he had
responsibility for.

2.3 Necessity in practice

The case of Re A recognised that the defence could be applied but due to the restrictive criteria
set out and subsequently added to, the reality of a general defence of necessity is not an easy
defence to argue in practice. In fact, most of its success has been limited to medical cases to
protect professionals and allow for patient’s best interests to be looked after. It has not yet gone
so far as to protect patients acting in their own best interests in relation to self-medication cases.

Case in Focus: R v Quayle [2005] 1 WLR 3642

This was a conjoined appeal from five defendants, all convicted of drugs offences relating to the
possession, importation or cultivation of cannabis and all appealing on the basis of the
applicability of the defence of necessity in relation to their offences. The defendant’s were all
arguing that in their instances the cannabis was solely for medical purposes for the relief of
various painful conditions including HIV and Multiple Sclerosis. The Court shut down this
argument and dismissed their appeals holding that no defence of necessity was applicable in their
circumstances.

However, again protecting medical professionals, the Home Office agreed with the
Pharmaceutical Society of Great Britain that in relation to drug trials it could be necessary to use
cannabis.

Outside of the medical arena the defence of duress of circumstances may afford a better route to
defendants. This defence is still very restrictive but the court’s are more open to hearing this
defence as it is not accompanied by the public policy fear of opening the flood gates to justifying
immoral behaviour.

2.4 Arguments for a General Defence

(i) Taking into account the defendant’s motive

The law holds that a person should only be responsible for acts of their own free will. The
defence of automatism supports this whereby the defendant who carries out an act due to an
internal or external factor that deprives them of their free will is afforded a defence. This defence
limits the recognition to a physical inability to exercise free will but does not encompass a
circumstantial inability whereby although the defendant may physically be able to control his
actions, realistically he has no choice but to act as he does, thus depriving him of his free will.

(ii) Impossible standards of morality

Not recognising a defence of necessity sets a standard whereby the law expects individuals to
exercise good morals and obedience to the law above the basic human instinct of survival.
Consider the case of Dudley and Stephens. Realistically, can it be reconciled with Re A, other
than the fact that Dudley and Stephens were not medical professionals? A decision was taken to
kill the person least likely to survive, the cabin body in Dudley and Stephens and baby Mary
in Re A. In both cases the decision was taken in order to effectuate the survival of the others, and
in both cases if the decision had not been taken all parties involved would likely have met their
death. In any case, this standard of morality handed down by the law is exceptionally high so as
to criminalise human beings fighting for their survival in dire circumstances whilst at the same
time imposing no liability for a duty to act on an adult walking by a child drowning in a lake. It
can be argued that the law is inconsistent in this respect and should take a more level approach to
the standard of morality expected from people.

(iii) Other jurisdictions recognise the defence

A general defence of necessity is recognised in many other countries and seemingly they still
maintain a good level of lawfulness and have not descended into the anarchy that Lord Denning
postulated in Southwark London Borough Council v Williams.