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Criminal Law Defences Necessity And Duress Notes

BCL Law Notes > Criminal Law: Offences and Defences Notes

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NECESSITY/ DURESS OF CIRCUMSTANCES

Where will is overborne, not by a person, but by circumstances.
Threat not coming from a person.
Not really any Irish cases.
Common law defence.

What is it?An inescapable necessity, a real and pressing danger.Conduct must be proportionate to the problem.

Scope?

Most famous case in criminal law.

Dudley & Stephens.
The 4 people on the yacht are Dudley (captain), Stephens (shipsmade), Brooks (commander and prosecution witness), and Richard Parker (Cabinboy)
They set sail from England to Sydney in a yacht - stupid idea. Ship starts to sink. The 4 of them are cast away on a small open boat (lil' life boat in effect). No water on it. They live on the turret for 3 days. On 4th day they catch and eat a small turtle. Keeps them going until the 12th day.
Between days 12-20, no food and manage to capture a little bit of rain water. Back in the 19th century, this was not an uncommon scenario. Sea fairing was very common and a large part of the economy. There were customs to deal with various scenario, and the one in this scenario -
was that if you were out of food, it was acceptable to resort to cannibalism ONLY if it was a random selection of who it was to be eaten. Here, the cabin boy is the youngest and weakest and becomes semi-conscious. Instead of 'drawing locks' which would give everyone a 3 in 4 chances of not being a person. Instead, he kills the most junior and weakest.
They survive on parker for a number of days and are then rescued. All spreads like wildfire.
Might have gotten away with it but the news was leaked and became most famous criminal case of today - the OJ Simpson trial of maritime England.
It is said that Dudley & Stephens had agreed to eat parker. Brooks says he did not agree, but he has to as there must be a witness. When they eat parker, there are 3 left. So, you're going to need two accused and one witness. The first person to say they did not agree - are in the clear.

Huge because England's power depending on maritime power. If people didn't follow the customs of the sea, it has detrimental political and policy implications. People on ships around the world needed to comply with the customs as this is where England derived their power from.D & S argue necessity. We did kill him, but we had to.
The court formally convicted them of murder, but they released them shortly after Thus, they followed the law and enforced customs and policy, but was fair enough to the two convicts.

US V Holmes
Involved an American ship that sank. All passengers and crew jumped into a log boat, but it began to sink. The crew decided to throw all passengers out and save themselves, and they did + the chef.Locks should've been drawn, unless things are SO bad that there is no time to do so.
Unlike duress, slight ambiguity about killing someone when necessity demands by way of circumstances.

Locknan?
Victoria
A had escaped from prison, was quickly caught and when charged w/ escaping, he said the circumstances necessitated it, as the word got around that I was a snitch to the prison authorities.
An informant. He said this isn't true, and it definitely not a good label to get in prison and could be violent or fatal. So, he escaped as he felt his life was in danger.
SC of VYou should've pursued other options and have gone at least to the authorities.

Prisons are OBLIGED to protect to, its not discretionary.Only in the most extreme circumstances, could you justify escaping prison under necessity!

If urgency requires so.

ABORTION

Was a crime in the past, under 1861 OAPA.
Not merely unlawful, but a criminal offence.
Where somebody has been prosecuted for that crime, a doctor say, on occasion they'd seek to defend the crime through reliance on necessity & invoking the help of the woman
Yes I've prima facie performed an abortion within the meaning of a crime, but the urgency of risk to life necessitated such.

Morgentaler CA
Abortion clinic in Canada, numerous attempts to prosecute him and he continued to rely on necessity. There was always a sympathetic jury, he was prosecuted 4 times and was constantly acquitted.

Perka CA
Leading case in Canada on necessity
A had a boat and planned an excursion from Columbia to Alaska. Filled boat w/ cocaine and transport it. importation from Columbia to USA. During excursion, they are worried it will sink ina storm. They aim it at Canadian borders and get there, and the authorities discover the drugs.

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