Criminal Offences and Defences & Issues in Criminal Law 2018-2019 (Semester II) Dr Paul Anthony McDermott SC Topic 4: Necessity (Duress of Circumstances) General background reading Charleton, McDermott and Bolger, Criminal Law, chapter 15 McIntyre Criminal Law (2012) pages 279-283 Glazebrook: "The necessity pleas in English Criminal Law" [1972] Crim LR 87. Gardner: "Direct action and the defence of necessity" [2005] Crim LR 371. Introduction Necessity is a common law defence. There is no statutory provision that addresses it. It is a complete defence. Available to all crimes with the usual query around murder. There is no Irish case law and so we have to look at cases from other jurisdictions. By committing the crime you avoided a worse alternative. Duress is where someone is threatening you whereas necessity is where nobody is telling you to do anything but the circumstances compel you to commit the crime. The following quote explains the difference between duress and necessity: "In necessity cases, the key issue is the moral imperative to act: what matters is whether in the circumstances it was morally imperative to act, even if this might involve the commission of wrongdoing, in order to negate or avoid some other evil. In duress cases, the key issue is the personal sacrifice [the accused] is being asked to make: should [the accused] be expected to make the personal sacrifice involved in refusing to give in to a coercive threat, rather than avoid implementation of the coercive threat by doing wrong?" 1
- per Jeremy Horder in (1998) 11 Canadian Journal of Law and Jurisprudence 143. Historical case-law R v Dudley & Stephens (1884) 14 QBD 273 (necessity can never be a defence to murder) small yacht set out from England to Sydney. Dudley, Stephens, Shipsmate Brooks, cabin boy Richard Parker. 1600 miles from cape of good hope. Ship sank. Managed to all 4 jump into dinghy. 2 one pound tins of turnips, no water, ate a small turtle kept them going to day 12. For next 8 they had no food, caught rainwater. Day 20 Dudley decides to kill the cabin boy - the weakest, unconscious. Stephens had agreed, Brooks said he hadn't agreed. Having killed him they eat him. Miraculously 4 days after killing him they are picked up by a passing ship which makes its way to Exeter. Tell everybody what happened - whole town knows. They give a full account to what they think is an inquiry to master of harbour which he passes to the prosecution. They are prosecuted for murder. Sensational case. They rely on defence of necessity - killed him for sustenance in order to save our lives. England empire based on shipping so what happened at sea was not a minor matter. Very important that people at sea obeyed the custom of shipping. Back then everybody was prepared for being cast adrift - not unusual. There was a custom of the sea that where you reached the point that the only way to survive was