Q: The judges seem unable to decide whether the defence of necessity does exist as a form of duress, or does not exist at all.

Consider the truth of the above statement.

Essay outline answer

The defence of duress is where the defendant commits what would otherwise be an offence but for threats or circumstances that would result in death or serious injury, which he is avoiding, and the person of reasonable firmness would have acted in the same way. The leading cases are Howe (1987) and Hasan (2005). To the extent that necessity is a form of duress, no additional definition is required, but if they are different defences, a definition of necessity should be offered, and the three-stage test from Re A (Children) (Conjoined Twins) (2001) could be used:

1. the act was required to avoid inevitable and irreparable evil;
2. no more would be done than was reasonably necessary for the purpose to be achieved; and
3. the evil to be inflicted was not disproportionate to the evil avoided.

As a separate defence, the defence of necessity is not universally supported and you should be able to cite Dudley and Stephens (1884) and LBC Southward v Williams (1971) authorities. Answers could also discuss the overlap with duress of circumstances (Conway (1989) for example). On the other hand, a number of academic authors argue they are separate defences, see eg Quayle (2005). The difference could be that duress reflects urgency and necessity reflects inevitable and avoidable harms.

The Supreme Court decision in Nicklinson v Ministry of Justice should be mentioned. The Court of Appeal held no defence of necessity exists within the homicide or assisted suicide offences and only Parliament can change this. The Supreme Court agreed, but indicated that if Parliament failed to address the issue the courts may have to issue a ruling.