Duress of Circumstances and Necessity (OCR A-Level Law): Revision Notes

Duress of Circumstances and Necessity

Introduction to the defence

Duress of circumstances is a common law defence where a defendant is compelled to commit a criminal act because of the dangerous situation they find themselves in, rather than because of a direct threat from another person. This makes it distinct from duress by threats, which requires an explicit threat of death or serious injury.

The defence is sometimes called necessity. In R v Shayler (2001), Lord Woolf CJ explained that the distinction between necessity and duress of circumstances has been largely "ignored and blurred by the courts" and that they are essentially the same defence.

This defence developed to address gaps in duress by threats, which has very restrictive requirements. It allows defendants to argue they acted out of necessity due to external circumstances beyond their control.

Origins and development of the defence

Early recognition

The defence first emerged in the late 1980s through a series of road traffic cases:

R v Willer (1986) – The defendant drove his car onto a pavement to escape from a group of violent youths who were attacking him. Although there was no threat to commit a crime, the Court of Appeal held that the jury should be allowed to consider some form of duress in such circumstances. This case opened the door to recognising circumstances (not just threats) as a basis for duress.

R v Conway (1988) – The defendant drove at high speed after believing shots had been fired at him. The Court held that duress was available if, from an objective point of view, the defendant was acting to avoid a genuine threat. This established the objective element of the defence.

R v Martin (1989) – The defendant drove while disqualified because his wife threatened to commit suicide unless he took their son to work. The Court of Appeal adapted the two-part Graham test (originally for duress by threats) to apply to duress of circumstances. This case established the modern test still used today.

Definition and legal test

The Re A definition

In Re A (Children) (Conjoined Twins: Surgical Separation) (2001), the Court of Appeal approved a comprehensive definition for necessity/duress of circumstances:

An act which would ordinarily be considered a crime may excuse the defendant if they can show that:

1. It was done to avoid consequences which could not otherwise be avoided, and if they had been followed would have inflicted inevitable and irreparable evil upon themselves or others.

2. No more was done than was reasonably necessary to avoid the harm.

3. The evil inflicted was not disproportionate to the evil avoided – in other words, the harm caused by the defendant's actions must not be greater than the harm they were trying to prevent.

This three-part test emphasises proportionality, necessity, and reasonable action.

The Martin test

In addition to the Re A definition, the defendant must satisfy the two-part Martin test:

1. Objective element: From an objective point of view, the accused acted reasonably and proportionately to avoid a threat of death or serious harm.

2. Subjective element: The same two-part Graham test applies:

   • Did the defendant genuinely believe they were in immediate danger of death or serious injury? (subjective)
   • Would a sober person of reasonable firmness, sharing the defendant's characteristics, have responded in the same way? (objective)

Key cases demonstrating the defence

Extent and availability

The following cases demonstrate how courts have applied and extended the defence beyond its original scope:

R v Pommell (1995) – The defendant was found in possession of a firearm at his home. He claimed he had taken it from someone who intended to use it and was planning to hand it to the police the next day. The Court of Appeal held that whether duress of circumstances applied was a question for the jury to decide. This case confirmed the defence could apply to a wide range of offences beyond driving offences.

DPP v Davis (1994) – The defendant drove while intoxicated to escape an attack. His convictions were quashed and the Court confirmed that duress of circumstances was available even where the defendant had consumed alcohol, provided the other elements were satisfied.

R v Cairns (1999) – A victim threw himself onto the bonnet of the defendant's car. The defendant warned him to get off, then drove and braked, causing the victim to fall off and suffer serious injury. The Court held there was a reasonable perceived threat of death or serious injury, and the defence was allowed. This case shows the defence applies where the defendant reasonably perceives danger, even if that perception is mistaken.

Limitations on the defence: murder cases

R v Dudley and Stephens (1884) – Two sailors cast adrift at sea killed and ate the cabin boy to survive. The defence of necessity was refused. The Court held that no person's life is worth more than another's, and necessity could not justify taking an innocent life.

However, the defence has been accepted in other life-and-death situations:

Re F (1990) – A health authority applied to sterilise a severely mentally disabled patient due to the high risk of pregnancy. The House of Lords allowed the sterilisation on grounds of necessity, as it was in the patient's best interests.

Re A (2000) – A health authority sought permission to separate conjoined twins, knowing that one twin would die as a result. Lord Brooke stated and applied the three-part test of necessity (the Re A test above), allowing the surgeons to perform the operation. The defence of necessity would be available to the surgeons if they were charged with murder of the weaker twin.

R v Shayler (2001) – A former MI5 officer was charged with breaching the Official Secrets Act 1989. He claimed necessity as a defence, arguing he needed to disclose information to prevent serious harm. The defence failed. The Court confirmed the Re A test applied and that there were lawful alternatives available to the defendant (such as internal reporting mechanisms), so his actions were not necessary.

Comparison with duress by threats

Duress of circumstances differs from duress by threats in the source of the compulsion:

• Duress by threats: The defendant is threatened by another person to commit a crime ("Do this or I'll kill you").
• Duress of circumstances: The defendant acts because of dangerous external circumstances, not because of a direct threat from a person.

Both defences share similar requirements:

• A threat of death or serious injury
• Reasonable and proportionate response
• No reasonable opportunity to escape or seek help
• The Graham test for assessing the defendant's response

Both defences are unavailable for murder (R v Howe, R v Dudley and Stephens) and attempted murder (R v Gotts).

Requirements for the defence

To successfully rely on duress of circumstances/necessity, the defendant must establish:

1. Threat of death or serious harm: There must be a threat to life or serious injury, either to the defendant or to others. Lesser harms will not suffice.

2. Objective reasonableness: A reasonable person would have responded in the same way to the perceived threat.

3. Proportionality: The harm caused by the defendant's actions must not be greater than the harm avoided.

4. No reasonable alternative: The defendant had no other reasonable way to avoid the threat. If they could have sought police protection or taken other lawful action, the defence will fail (as in R v Shayler).

5. Immediacy: The threat must be immediate or almost immediate. If the defendant had time to seek help, the defence is unlikely to succeed.

6. No voluntary association: The defendant must not have voluntarily placed themselves in the situation where they knew duress might arise.

Evaluation

The relationship between duress of circumstances and necessity can appear confusing. As Lord Woolf noted in Shayler, the courts have largely treated them as the same defence. Both defences have evolved through common law rather than statute, developing as defence lawyers have sought to address gaps and limitations in existing defences.

The defence has developed pragmatically, particularly through driving cases in the late 1980s, to provide a defence where defendants face genuine emergencies but do not receive direct threats from others.

Exam guidance

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