These titles are quite sensational for legal concepts, right? Today we’re talking about duress and necessity. Both are pretty simple, especially when illustrated with case examples.
Duress: In the Wrong
Duress is an excusatory defence, meaning that the act itself is deemed to be wrong. Establishing duress means that you reasonably believed that you were threatened and a reasonable person would have done the same thing in that situation.
You cannot use duress as a defence in treason, murder, and attempted murder cases. However, these limitations can lead to tricky scenarios.
Hypothetical: Later Death
Let’s say, under duress, you attacked someone and they ended up seriously injured. You were let off the hook because it was established that you acted under duress.
Now it’s two months later, and your victim unfortunately dies. You are now facing murder charges, but your duress defence is no longer available.
Doesn’t really seem fair.
Necessity: Accepted Crime
This defence, in contrast with duress, is more accepting of the committed crime, given the context. It is a justificatory defence rather than an excusatory one.
The bar for necessity is set quite high. Your act must be to avoid inevitable and irreparable evil, no more than what’s necessary is done, and the evil committed cannot be disproportionate to the evil avoided.
That all sounds very vague. However, the infamous conjoined twins case highlights these elements very clearly.
Re A (Conjoined Twins) [2001]
TLDR: Twins J and M faced a medical decision. If left conjoined, J’s heart would eventually fail and both twins would die. If separated, M would die immediately but J would still have a fighting chance to live.
Held: In the name of necessity, the operation to separate the twins would not be murder.
The act = operation to separate the twins
The evil avoided = death of both twins
The last law post was on being legally liable for other people’s reckless actions. Check it out here!