Necessity and Duress of Circumstances
Necessity
Necessity arises where a defendant is forced by circumstances to break the criminal law. The generally accepted position is that necessity cannot be a defence to a criminal charge. The leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.
Duress of Circumstances
More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury. The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988).
The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell.
There is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.
In R v Pommell, the Court of Appeal held that the limited defence of duress of circumstances, developed in English law in relation to road traffic offences, was closely related to the defence of duress by threats and applied to all crimes except murder, attempted murder and some forms of treason. (Out of interest: What are the laws on treason?)
If successfully established, duress of circumstances is a complete defence, resulting in an acquittal.