To what extent do the courts accept that circumstances of necessity can provide a defence to a criminal charge?
Necessity is a civil defence while duress and duress of circumstances are criminal defences. Therefore in order to fully answer this question we must explore the defences of duress, duress of circumstances for criminal law and the defence of necessity for civil law and determine to what extent they provide a defence.
In the case of Valderrama-Vega (1985) the D smuggled cocaine due to threats on his life and threats to disclose his homosexuality. The Court of Appeal quashed his conviction because the Jury did not look at the cumulative effects of all the threats that were made to him. A two stage test was introduced in the case of Graham (1982) when the D helped kill his wife because he was threatened by his homosexual lover. Was the D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death? If so, would a sober person of reasonable firmness, sharing the characteristics of the accused have responded in the same way? As we can see by these two cases, the Courts are prepared to accept the defence when the D life is being threatened. In the case of Matrin (DP) (2000) the D suffered from a schizoid-affective state which would make him see things as threatening and believe the threats would be carried out, therefore the Court held that the correct test should have been whether, in view of the D condition, he may have reasonably feared for his own or mothers safety. So now we can see that the Court includes danger to oneself and others as well as taking into account any medical conditions. In Bowen (1996) the court held that low IQ cannot be taken into account but age, pregnancy, gender and recognised mental illness can.
In the case of Gill (1963) Duress cannot be used if there is a safe avenue of escape. Hudson and Taylor (1971) held that the threat need not be capable of being carried out immediately. This was similar to the case of Abdul-Hussain (1999) where D hijacked a plane to escape from persecution in
In the case of Valderrama-Vega (1985) the D smuggled cocaine due to threats on his life and threats to disclose his homosexuality. The Court of Appeal quashed his conviction because the Jury did not look at the cumulative effects of all the threats that were made to him. A two stage test was introduced in the case of Graham (1982) when the D helped kill his wife because he was threatened by his homosexual lover. Was the D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death? If so, would a sober person of reasonable firmness, sharing the characteristics of the accused have responded in the same way? As we can see by these two cases, the Courts are prepared to accept the defence when the D life is being threatened. In the case of Matrin (DP) (2000) the D suffered from a schizoid-affective state which would make him see things as threatening and believe the threats would be carried out, therefore the Court held that the correct test should have been whether, in view of the D condition, he may have reasonably feared for his own or mothers safety. So now we can see that the Court includes danger to oneself and others as well as taking into account any medical conditions. In Bowen (1996) the court held that low IQ cannot be taken into account but age, pregnancy, gender and recognised mental illness can.
In the case of Gill (1963) Duress cannot be used if there is a safe avenue of escape. Hudson and Taylor (1971) held that the threat need not be capable of being carried out immediately. This was similar to the case of Abdul-Hussain (1999) where D hijacked a plane to escape from persecution in