The Defence of Duress or The Defense of Necessity

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The defense of duress is available where a defendant commits a crime to prevent the greater of death or serious injury to himself or another threatened by a third party. On the other hand, the defense of necessity refers to circumstances where a person chooses to commit an offence to avoid a greater evil to them or another which would result from objective dangers arising from the circumstances in which they are placed . The difference between these two similar defenses is that duress is regarded as an excuse in English Law, whereas necessity is regarded as a justificatory defense. For example, in the case of Missouri decision of State v Green , the Defendant was sentenced to imprisonment for a term of three years. While serving this sentence, the defendant committed a crime of escaping from prison in order to protect himself from submission to the threatened assault. The defense of necessity is on the principle of “necessity, and not emergency”. As a justificatory defense, it stresses on the actor choosing an option between two “evils” and engaging the lesser of them. Basically, significance of the defense of necessity involves a balancing of evils. The criminal offence committed by the defendant must involve a lesser evil. Basically, necessity is a defense when the defendant kills one person in order to save the lives of many others . Brooke LJ in the case of Re A stated that there are three requirements for the application of the defense of necessity. Firstly, the act is needed to avoid the unavoidable and irreparable evil. Second, no more should be done than is reasonably necessary for the objective to be attained. Lastly, the evil inflicted must be proportionate to the evil avoided. ... ... middle of paper ... ...fect on the other patient. Further, Brooke LJ was also of the opinion that the doctrine of double effect could not apply in this case. The reason being it was impossible to say that the surgeons would be acting in Mary’s best interest when the operation would save Jodie but kill her. Robert Walker LJ was also stated eventhough the operation would be in the best interest of both twins, he acknowledged that to kill Mary merely because it was in her best interest to die would be murder. He was also of the opinion that, in law, it could hardly be regarded as anything other than an evil consequence. However, the evil consequence would not be unlawful because it was not the motive or intention of the operation. Next, common law too recognises a narrow version of justificatory necessity, operating mainly but not entirely in the area of medical care.

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