Consultation Paper on Duress and Necessity
Tuesday, 25th April 2006: The Law Reform Commission's Consultation Paper on Duress and Necessity will be formally launched by the Hon Mr Justice John L. Murray, Chief Justice. This Consultation Paper on Duress and Necessity is part of a series on defences to criminal charges, one of the topics identified for examination under the Commission’s Second Programme of Law Reform 2000-2007. The first of these Papers, the Consultation Paper on Homicide: The Plea of Provocation, was published in 2003 and a third, a Consultation Paper on Legitimate Defence, is forthcoming. The legislative proposals contained in these Papers are being published against the background of the establishment of an Advisory Committee on the Codification of the Criminal Law under the Criminal Justice Bill 2004; the pleas of duress and necessity are exclusively judge-made law, and have not, as yet, been reduced to statutory form. [http://www.lawreform.ie//Duress%20and%20Necessity%20CP9.pdf]
Overview of Defences of Duress and Necessity
The defences of duress and necessity apply where an individual is constrained or coerced into committing a crime by reason of serious threats (duress) or dire circumstances (necessity). In many cases the defences are discussed in relation to homicide, but they also apply to other offences, ranging from receiving stolen property to unlawful possession of firearms. In duress, the defendant is faced with threats of death or serious harm (‘do this or else’), unless he or she commits a crime. For example, in the leading Irish case on duress, People v Whelan (1933) the defendant was charged with receiving stolen money. He admitted that he had accepted the money but said that he had done so under duress from another man, who had been armed with a revolver. The jury found that he had been under threats of “immediate death or serious personal violence” and the defence of duress was accepted.
In situations of necessity, the defendant faces a serious threat arising from a circumstantial or non-human source (unlike duress, there is no element of ‘do this or else’). The sinking of the ferry the Herald of Free Enterprise at Zeebrugge in 1987 provides a good example. As the ferry was sinking a man on the ship pushed another man to his death because he was frozen with fear and blocking the escape route for several others. Although the Director of Public Prosecutions decided not to proffer charges against him, most commentators consider that the defence of necessity should apply in situations of this kind.
Detailed provisional recommendations in the Consultation Paper On the defence of duress, the Commission provisionally recommends that its current limitations should remain. These include that:
the threat must be of death or serious harm;
the target of the threats need not necessarily be a relative or close friend of the accused;
the accused’s resistance must have been overcome, and this resistance must be that of the ordinary person, with the characteristics of the accused person;
the accused should have tried to seek official protection before taking the action that they did;
if the accused subjected themselves to the risk of threats, for example, by joining a criminal gang, they will not be allowed to avail of the defence.
Although the defence does not apply to murder, the Commission provisionally recommends that it should be allowed as a partial defence, which would reduce the charge from murder to manslaughter. Moreover, while acknowledging that the plea might be made available as a partial defence to those offences, the Commission accepts that a coherent case can also be made for treating duress as a complete defence where the accused’s actions can be justified on the grounds that the person chose the lesser of two evils, and invites submissions on this matter.
On the defence of necessity, the Commission provisionally recommends that it should be retained in its current form so that it would apply in certain exceptional circumstances where a person is faced with a constrained choice regarding his or her actions, the constraint arising from extraneous circumstances, and where the person, in choosing the course of action taken, breaks the law. As with duress, the Commission accepts that a coherent case can also be made for treating necessity as a complete defence where the accused’s actions can be justified on the grounds of lesser evils, and invites submissions on this matter.
Submissions on the provisional recommendations contained in this Consultation Paper are welcome by 30th September 2006.
Making a Submission : http://www.lawreform.ie/submissions/submission.htm