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10.2.1 Duress and Necessity – Introduction

Welcome to the tenth topic in this module guide – Defences! When a defendant is charged with a crime, there are several ways in which he possibly could go about attempting to exonerate himself of legal responsibility, reduce his liability or lessen his sentence. This can be done through arguing the facts of a case, arguing a case on a point of law, arguing mitigating circumstances or establishing a defence in his favour. In law, there exists many different types of defences, and one defence may fall under a multitude of categories.

This topic in this module focuses on two different defences: duress and necessity. The defence of duress applies where the perpetrator’s choice was constrained as a result of threats to commit an otherwise criminal act, whereas necessity applies where the perpetrator has an inhibited choice due to exceptional circumstances. Duress and necessity are both excusatory defences, and as such, apply when the accused admits they committed a criminal act but that their actions can be justified, and therefore they should not be criminally culpable.

Goals for this section:

  • To understand the elements that must be satisfied in order to successfully raise a defence of duress or necessity.
  • To comprehend in what scenarios the defences of duress and necessity can be utilised.
  • To appreciate the effect of a successful plea of duress and necessity.

Objectives for this section:

  • To appreciate the delineation between duress by threats, as established in the case of Whelan, and duress by circumstances.
  • To be able to recognise the importance of the development of case law for both of the defences.
  • To be able to analyse and evaluate the nuances of both of the defences, as required in an examination.

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