Duress, on the one hand, arises from the actions of other people—the classic example is one person forcing another to commit a crime at gunpoint. Courts typically explain necessity, on the other hand, as a choice between two evils.
If circumstances give rise to a situation where the defendant must break the law in order to prevent harm, the necessity defense may be in play. For the defense to succeed, the harm the defendant causes can't be greater than the harm she prevents. Example: Alice holds a gun up to Joan's head and tells her, "Drive me to the hospital as fast as you can, or I'll kill you. If Alice is stopped for and subsequently charged with careless driving, she may have a viable duress claim.
Example: Alice's child is having an allergic reaction and has stopped breathing. Alice is in a rural area without a working cellphone or any other means of contacting someone. So, she drives her child to the hospital as fast as she can and doesn't hurt anyone in the process. If she is stopped and later charged with careless driving, she may be able to invoke the necessity defense.
She can argue that any harm caused by her driving was less than the harm she may have avoided: her child's death. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising.
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Search within Classification of Criminal Offenses. Abandonment Defense in Criminal Cases. Consent Defense in Criminal Cases. Entrapment Defense in Criminal Cases. Insanity Defense in Criminal Cases. Intoxication Defense in Criminal Cases. Necessity Defense in Criminal Cases. Self-Defense in Criminal Cases. Imperfect Self-Defense in Criminal Cases. Duress Defense in Criminal Cases.
Alcohol Crimes. Parole and Probation. Expungement and Sealing of Criminal Records. Offenses Included in Other Crimes. If the answer to both those questions was then the defence of necessity would have been established.
The reference to the sober person of reasonable firmness shows that, as with duress by threats, the crucial question is not whether the defendants actions were justified, but whether he can be excused on the grounds that a reasonable person would have acted in the same way.
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Contrast Switch to colour theme Switch to blue theme Switch to high visibility theme Switch to soft theme. Search for Search for. Top menu Careers Contact. Availability of the Defence Duress is a defence at common law to all crimes except murder, attempted murder and treason involving the death of the sovereign: R v Gotts [] 2 AC Nature of the Defence Principle There is no definitive statement of the scope of the common law defence of duress.
The Type of Threat Required All of the authorities recognising duress as a defence have involved threats of death or grievous bodily harm. The Cogency of the Threat The fact that the defendant believes that the threat will be carried out if he does not commit the offence is not, of itself, sufficient. Nexus between the Threat and the Crime The defence will only be available where the defendant has been subjected to threats directing him to commit a specific crime and he has complied by committing that crime.
Failure to Seek Police Protection against the Threat It is essential that the threat should have been effective at the time the offence was committed. Liability of Secondary Party where the Principal is Subject to Duress A secondary party is liable for conviction of the full offence, even if the principal has the defence of duress: R v Howe [] A.
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