Criminal Law

Question 1
Raffles enters Wizzo supermarket intending to buy a razor. As he has little money he
decides, before entering, that if the razor costs more than the 3 pound in his pocket, he
will steal the razor. Shortly afterwards, he accidently entered the storeroom of
supermarket and seeing a pair of Jordan’s immediately took it and wore it. Discuss Wizzo
criminal liability.
According to section 9(1)(a) of the Theft Act 1968, a person is guilty of burglary if he
enters any building or part of a building as a trespasser and with intent to commit offences
of stealing anything in the building or part of a building in question, or of inflicting on any
person therein any grievous bodily harm, or of doing unlawful damage to the damage to the
building or anything therein.
There are three elements for the actus reus of this section, which are trespass, entry
and a building or part of a building.
Trespass is a civil law concept which means being on someone else’s property
without authority. In this sense, Wizzo cannot be a trespasser. However, as referring to R v
Jones and Smith, if someone who has authority to enter the land for a particular purpose
will become a trespasser if they enter it for some other purpose. In Wizzo’s case, he has the
authority to enter the supermarket as a buyer but not a thief with the intention to steal.
Hence, he is considered as a trespasser and this element under actus reus is fulfilled.
Under the element of entry, Wizzo’s entry to the supermarket is both ‘substantial’
and ‘effective’ as referring to R v Collins. It is substantial as the whole body of Wizzo has
entered the supermarket, it is more than just sufficient in comparison to the partial entry of
the defendant in R v Ryan. His entry is effective, in reference to R v Brown, effective can be
interpreted as Wizzo is able to steal upon his entry. The element of entry under actus reus
of burglary is fulfilled as the entry of Wizzo is substantial, effective and more than just
sufficient.
The third element of actus reus is building or part of a building. In the case of Norfolk
Constabulary v Seekings & Gould, the lorry trailers being used as storage during a
supermarket refurbishment that were still on wheels despite being stationary for about a
year did not amount to a building. However, referring to B & S v Leathley, a lorry container
was kept in a farm yard for over two years. It was affixed to sleepers and utilized as
refrigeration storage. It was held that for the purpose of the Theft Act 1968, the container
should be considered as a building. In reference to these cases, it can be suggested that a
building requires a degree of permanence in order to be recognized as a ‘building’ in Theft
Act 1968. In Wizzo’s case, the supermarket is definitely a building as it has a high degree of
permanence because it is technically unmovable, unlike lorries. And even without
comparing its degree of permanence to lorries, it is very obvious and commons sense that a
supermarket is definitely a ‘building’ that is made up of bricks and build on the ground.
Hence, this part of actus reus of burglary is fulfilled in Wizzo’s case.
There are three elements under the mens rea of burglary, which are (i) intent to
steal, inflict grievous bodily harm or commit criminal damage (ii) at the point of entry (iii)
knowing or being reckless as to trespassing.
 For intent upon entry, section 9(1)(a) is wholly concerned with the intent of the
defendant at the point which he enters the building or part of the building as a trespasser.
There is no need to prove that the intended offence was actually committed as the intention
alone is sufficient. Although before entering the supermarket, Wizzo has no intention to
steal a pair of Jordan, it cannot be denied that Wizzo has the intention to steal a razor if it
costs more than 3 pounds. Even if it turns out that the razor costs less than 3 pounds, hence
Wizzo does not steal it, it does not matter as having the intention to steal the razor is
sufficient to fulfil this mens rea of burglary. This can be explained in Attorney-General’s
References (Nos 1 and 2 of 1979), which has asserted that conditional intention like Wizzo’s
is sufficient for burglary as it is quite common for burglars to intend stealing only if they find
something worth the trouble once they have broken in. In Wizzo’s case, he does not steal
the razor but it does not matter as well because he does have the intention to steal the
razor before he enters the supermarket.
Wizzo knowingly enters the supermarket as a trespasser as he is not being reckless
due to the drunken state of mind. In reference to above, Wizzo has the intention to steal at
the point of entry knowing as to trespassing. Hence, mens rea of burglary is fulfilled.
Wizzo’s action of taking and wearing the pair of Jordan’s after accidently enters the
storeroom may be considered as commiting offence stated in section 9(1)(b). Section 9(1)(b)
of the Theft Act 1968 sets out that bulglary offences are commited where the defendant
enters any building or part of the building as a trespasser, and then steals, attempts to steal,
inflicts or attempts to in the building or inflict or attempt to inflict grievous bodily harm on
any person therein. However, it is necessary to look into the offence of theft under section 1
of the Act as section 9(1)(b) requires the action to involve ‘stealing’. Hence, it is important to
examine whether Wizzo’s action of taking and wearing can be considered as stealing or not.
Section 1 of the Theft Act 1968 provides (1) a person is guilty of theft if he
dishonestly appropriates property belonging to another with the intention of permanently
depriving the other of it. The actus reus of this offence is (i) appropriation (ii) of property (iii)
belonging to another.
Appropriation is explained in section 3(1) of the Theft Act 1968 defines:
(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and
this includes, where he has come by the property (innocently or not) without stealing it, any
later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred for
value to a person acting in good faith, no later assumption by him of rights which he
believed himself to be acquiring shall, by reason of any defect in the transferor’s title.
In R v Morris, it is confirmed that an appropriation was not just physically taking the
property, but could be achieved for example by doing any act that only the owner has the
right to do, in this case, wearing the pair of Jordan’s. Hence, Wizzo’z action does fulfil the
appropriation element of actus reus.
Property is explained in section 4 of the Theft Act 1968: property includes money
and all other property, real or personal, including things in action and other intangible
property belonging to another. Section 5 of the Theft Act 1968 states that another person
must have possession or control of the property in order for it to be considered to belong to
another. In Wizzo’s case, the property is the pair of Jordan that is obviously belonging to
another if not it won’t be properly kept in the storeroom. Hence, the property and
belonging to another elements of actus reus are fulfilled.
Mens Rea of theft includes (i) dishonesty (ii) with the intention to permanently
deprive.
Section 2 of the Theft Act 1968 provides a negative definition of what constitutes
dishonesty by setting out three situations where a defendant will not be deemed dishonest:
(i) if he appropriates the property in the belief that he has in law the right to deprive
the other of it, on behalf of himself or of a third person; or
(ii) if he appropriates the property in the belief that he would have the other’s
consent if the other knew of the appropriation and the circumstances of it; or
(iii) if he appropriates the property in the belief that the person to whom the
property belongs cannot be discovered by taking reasonable steps.
Obviously, Wizzo’s situation fulfils none of these as (i) he does not have the belief
that he has in law the right to deprive the owner of the pair of Jordan, on behalf of himself
or of a third person, (ii) it is assumed that the owner does not even know who Wizzo is,
hence, the owner will definitely not give Wizzo the consent to take and wear the pair of
Jordan and (iii) the owner can easily come back to the storeroom and discover his pair of
Jordan.
The victim need not actually be permanently deprived of their property, so long as
the defendant held the intention of permanently depriving them of it. In the case of Wizzo,
it is unclear whether he has the intention to permanently deprive the owner of the pair of
Jordan’s. If he does not have such intention, then this mens rea is not fulfilled and he is
actually not stealing the pair of Jordan, making him free from the criminal liability stated
under section 9(1)(b). However if he does have, then his action must be further examined.
The actus reus under section 9(1)(b) is (i) entry (ii) into a building or part of a building
(iii) as a trespasser and (iv) attempt to, or indeed does, steal or inflict grievous bodily harm.
Wizzo enters the storeroom of the supermarket as a trespasser. Here, assuming Wizzo has
the intention to permanently deprive the owner the pair of Jordan’s, he will be considered
as stealing the pair of Jordan’s. Wizzo’s action fulfils the mens rea under this section of
offence because he knowing as to trespassing and has a dishonest intention to permanently
deprive another of property (in this case, it is the pair of Jordan).
For both types of bulglary, the maximum sentence is 14 years’ imprisonment where
the property burgled is dwelling and 10 years’ where it is not a dwelling.
In conclusion, it is clear that Wizzo will be held liable for burglary offence stated
under section 9(1)(a) of the Theft Act 1968 as he has the intention to steal the razor and all
the actus reus and mens rea of this offence are being fulfilled. Hence, he will likely be
sentenced with a maximum imprisonment of 14 years for dwelling property and 10 years for
property that is not dwelling. However, whether Wizzo will be liable for burglary stated
under section 9(1)(b) is not a very clear one as it still need to be considered that whether
Wizzo has the intention to permanently deprive the owner of the pair of Jordan’s.

Question 2
The Fraud Act 2006 has done nothing in reforming the Law. How far do you agree on this
statement based on your understanding of law?
Before Fraud Act 2006, these were under Theft Act 1968, under section 15 to 16:
(i) obtain property by deception
(ii) obtain money transfer by deception
(iii) obtain pecuniary advantage by deception
These offences have ‘deception’ as common element. Deception means inducing a
person to believe that a thing is true which is false, and the person practicing the deceit
knows or believes it to be false. Deception can be as to law, fact or intention. It can be
express or implied.
The old fraud offences had become complex and confused. One provision of the
Theft Act 1968, section 16, containing certain deception offences, was so obscure and
difficult to use that just four years after the Act was passed, the Criminal Law Revision
Committee was asked to look at amending it. There were also gaps in the coverage of the
1968 Act.
Secondly, fraudsters could avoid liability under the Theft Act 1968. The fact that
conduct was fraudulent would not necessarily mean that it was an offence, this gave
fraudsters the opportunity to avoid liability by relying on the detail of the individual
offences.
The Fraud Act 2006 has created a new general offence of fraud, with a maximum
sentence of ten years’ imprisonment. This offence can be committed in one of three ways:
(i) false representation;
(ii) failure to disclose information;
(iii) abuse of position.
For the offence to have been committed, the person must have behaved dishonestly,
and this concept will continue to be given the common law Ghosh meaning. Before 2006,
the deception offences were result offences but, after 2006, the fraud offences are conduct
offences.
This means that a fraud offence today will be committed when the defendant acts in
the relevant way, regardless of whether the result is, for example, that the defendant
obtains property. Unsuccessful ‘attempts’ to defraud the victim may in law amount to the
complete offence. This is an important change in the law. Under the old law, the
defendant’s conduct had to deceive the victim so that it caused the victim to do whatever
act was appropriate to charge, such as transfer property. Under the new general fraud
offence there is no need to prove any result was caused by the defendant.
Discussion on the Act will be further carried out in order to examine how much
reform has this Act contributed to the previous law concerning on fraud.
Fraud by false representation is stated under section 2 of the Fraud Act 2006 and it is
defined as the defendant dishonestly make a false representation, with the intention to
make a gain for him or another, or to cause loss to another or to expose another to a risk of
loss. The actus reus of this offence are (i) the defendant’s conduct of making a
representation and (ii) the representation is false. According to section 2(3), the
representation can be on matters regarding fact, law or any person’s state of mind or that of
the defendant. According to section 2(2)(a), a representation is said to be false if it is untrue
or it is misleading. The mens rea of this offence are (i) the defendant’s knowledge about the
representation, (ii) intention to make a gain or cause a loss and (iii) defendant is dishonest
when making the representation. According to section 2(2)(b), the defendant has the
knowledge that the representation made is either untrue or misleading; or might be untrue
or misleading. As stated in R v Woolin, the defendant makes false representation with
intention of either
(i) to make a gain for himself or another (s.2(1)(b)(i)); or
(ii) to cause loss to another or to expose another to a risk of loss (s.2(1)(b)(ii)).
Under s.5(2)(a), ‘gain’ or ‘loss’ should only be in the form of money or other
property. Gaining ‘satisfaction’, for example, is not ‘gain’ under Fraud Act 2006, because it is
not a property. Under s.5(2)(b), ‘gain’ or ‘loss’ can be either temporary or permanent. Under
s.5(3), ‘gain’ includes a gain by keeping what one has or what one does not have. Under
s.5(4), ‘loss’ includes a loss by not getting what one might get, as well as a loss by parting
with what one has.
For the third element of mens rea, there is a common law test on ‘dishonesty’, this is
based on objective test as it can be seen in Ivey v Genting Casinos where the question of
‘was what was done by the defendant dishonest by the standard of reasonable and honest
people?’ was being asked. If the defendant was dishonest by the standard of reasonable and
honest people, then ‘dishonesty’ is established.
The second offence found in Fraud Act 2006 section 3 is fraud by failing to disclose
information. It is being defined as the defendant dishonestly fails to disclose to another
person information to which the defendant is under a legal duty to disclose, and does so
with the intention to make a gain for himself or another, or to cause loss to another or to
expose another to a risk of loss. The actus reus of the offence are (i) the defendant’s
conduct of failing to disclose, (ii) the defendant is under a legal duty to disclose and (iii)
what is not disclosed is information. The word ‘failure to disclose’ indicates that the conduct
in a form of omission is required. The defendant who does not disclose information msut be
under a ‘legal duty’ (duty imposed by law) to disclose the information. There are certain
suggestions, on which situations legal duty may arise, specifically specified in the Law
Commission Report No. 276 [2002]. In order to be liable under this section, what is failed to
be disclosed by the defendant must be in the form of information and not property.
The mens rea of this offence are (i) by failing to disclose information, the defendant
intends to make a gain to him or another, or cause a loss or expose risk of loss to another
and (ii) the defendant is dishonest in failing to disclose information. Dishonesty under the
mens rea of this offence used the same object test as the fraud by false representation.
The third offence is fraud by abuse of position as stated under section 4 of the Act. It
is being defined as the defendant occupies a position expected to safeguard, or not to act
against, the financial interests of another person, dishonestly abuses that position, with the
intention to make a gain for himself or another, or to cause loss to another or to expose
another to a risk of loss. The actus reus of this offence are (i) the defendant occupies a
position expected to either safeguard the financial interests of another or not to act against
the financial interest of another (as stated in section 4(1)(a) and (ii) the defendant’s conduct
of abusing his position (as stated in section 4(2)). Section 4(1) of the Act refers position as to
referring to a person who is in a certain situation as it relates to a surrounding
circumstances. The Law Commission Report No. 276 [2002] has specifically suggested in
which situations position could arise.
The mens rea of this offence are (i) by abusing his position, the defendant intends to
make a gain to himself or another, or cause a loss or expose risk of loss to another (as stated
in sections 4(1)(c)(i) and 4(1)(c)(ii)) and (ii) the defendant is dishonest in abusing his position.
The dishonesty in this mens rea is also using the objective test like the other 2 offences as
mentioned above.
In reference to all above, it can be seen that in comparison to the sections 15 and 16
of the Theft Act 1968, the Fraud Act 2006 is far more detailed and clear. Unlike the
provisions that were governing deception under the Theft Act 1968, the Fraud Act 2006 is
less complex and confused as there are more details being mentioned in the Act which is
enacted to examine specifically on the offence of fraud only. In the past, the fact that
conduct was fraudulent would not necessarily mean that it was an offence, giving the
fraudsters the opportunity to avoid liability by relying on the detail of the individual
offences. However, under the Fraud Act 2006, even if the conduct fails to result in
fraudulent result, it does not matter, as long as the fraudulent attempt does exist, the
fraudster can be charged with the offence of fraud. In the past, the deception offences are
categorised as (i) obtain property by deception, (ii) obtain money transfer by deception and
(iii) obtain pecuniary advantage by deception. Under these categories, it is very difficult for
the court to apply due to its obscurity and the vague and a general meaning of ‘deception’
when in comparison with the Fraud Act 2006. The Fraud Act 2006 categorised fraud into (i)
fraud by false representation, (ii) fraud by failing to disclose information and (iii) fraud by
abuse of position. These categories are very clear along with the details stated in the Act.
In conclusion, although the Fraud Act 2006 is still not the perfect legislation to rule
the offence of fraud, no one can deny that it is a huge reform from the Theft Act 1968 when
referring to the facts above.

Question 3
Based on English law explain what is the defense of necessity.
The defense of necessity may apply when an individual commits a criminal act during
an emergency situation in order to prevent a greater harm from happening. In such
circumstances, the English legal system typically excuses the individual’s criminal act
because it was justified, or finds that no criminal act has occurred. Although necessity may
seem like a defense that would be commonly invoked by defendants seeking to avoid
criminal charges, its application is limited by several important requirements:
(i) The defendant must reasonably have believed that there was an actual and specific
threat that required immediate action
(ii) The defendant must have had no realistic alternative to completing the criminal act
(iii) The harm caused by the criminal act must not be greater than the harm avoided
(iv) The defendant did not himself contribute to or cause the threat
Only if all of these requirements are met, will the defense of necessity be applicable.
It is also important to note that in some jurisdictions, necessity is never a defense to the
killing of another individual, no matter what threat they may present.
Reasonable Belief
Under the defense of necessity, an individual must reasonably believe, first and
foremost, that there is an imminent and actual threat that requires immediate action. Thus,
for instance, a school bus driver may be driving a bus of school-aged children when he loses
control of his brakes as he is approaching a steep turn on a mountain road. He is faced with
an actual and immediate threat that the bus may go out of control and drive off the road,
risking the lives of countless children on the bus.
Like other crimes, most states require that this threat would be reasonably apparent
to the average individual and is not a threat that the defendant experienced only
subjectively. Here, a reasonable person would certainly agree that an out of control bus
with children on it is an actual threat to safety.
No Realistic Alternative
Because the defense of necessity is essentially a justification for the criminal act, it is
imperative that the defendant had no other realistic options available to him at the time the
criminal act was committed. If he did, his criminal actions would not be justified. This does
not mean, however, that no alternative whatsoever must exist. Generally, the individual will
always have the option to simply let the greater harm occur and refrain from acting
criminally, but courts have determined that this is not a “realistic” option.
In the example, for instance, if the bus driver had access to an emergency braking
device that was designed to stop the bus when the regular brakes failed, he would not be
justified in committing a criminal act to prevent collision because he had a realistic
alternative available to him.
No Greater Harm
When an individual is evaluating whether it is necessary to undertake a criminal act in
order to avoid a more serious problem from arising or occurring, the individual must be
certain that no greater harm will arise from his or her criminal act than from the situation that
would be avoided.

For instance, if, in order to avoid driving off the mountain road and plunging down
the steep incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he
must be certain that no greater harm will come from this choice. Because it is a barn and
perhaps appears empty to him, his criminal act of destroying the barn and any property inside
will likely be considered less harmful than the lives lost if the bus careens over the road.
However, if the bus drivers only alternative was to drive the bus into an area crowded with
other people, he might, in fact, cause more harm through this alternative than would be
prevented.

No Involvement in the Threat

 Finally, any defendant claiming the defense of necessity cannot have contributed to or
caused the threat that they were later seeking to avoid by committing the criminal act. Thus,
if the bus driver had been advised by his mechanic that the brakes on his bus were failing, but
decided not to have them replaced, he could have difficulty claiming the defense of necessity
because his failure to act responsibly contributed to the threat he faced.

The general rule in necessity law is necessity arises where a defendant is forced by
circumstances to transgress the criminal law. The generally accepted position is that
necessity cannot be a defence to a criminal charge. An example of the leading cases is R v
Dudley and Stephens. The defendants and a cabin boy were cast adrift in a boat following a
shipwreck. The defendants agreed that as the cabin boy was already weak, and looked likely
to die soon, they would kill him and eat him for as long as they could, in the hope that they
would be rescued before they themselves died of starvation. A few days after the killing
they were rescued and then charged with murder. The judges of the Queen's Bench Division
held that the defendants were guilty of murder in killing the cabin boy and stated that their
obvious necessity was no defence. The defendants were sentenced to death, but this was
commuted to six months' imprisonment.
Whilst there has been no general recognition of necessity as a defence, it has been
permitted to operate under various guises, on a piecemeal basis, for example, in medical
cases like R v Bourne [1939], the defendant gynaecologist performed an abortion on a
young girl who had been raped. He had formed the opinion that she could die if permitted
to give birth, and the operation was performed in a public hospital, with the consent of her
parents. The defendant was found not guilty of "unlawfully procuring a miscarriage"
following a direction from the trial judge to the jury that a defendant did not act
"unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted
in good faith, in the exercise of his clinical judgement. (This is now within the Abortion Act
1967.)
However, necessity may never be a defence to a charge of murder just as it can be
seen in R v Howe [1987].

The Pragmatic Approach

The practical solution perhaps lies in the way in which the discretion to prosecute is
exercised. Lord Denning, in Buckoke v GLC [1971], stated obiter that the driver of an
emergency service vehicle who drove through a red traffic signal when responding to an
emergency call, whilst he would not be able to rely on the defence of necessity, "should not
be prosecuted. He should be congratulated".
In other cases the circumstances can be taken into account, as mitigating factors,
when considering what sentence would be appropriate (as recommended by the Law
Commission, 1977).
Until recently it was commonly thought that a general defence of necessity did not
exist in English law. Thus, in Buckoke v GLC [1975], Lord Denning indicated obiter that the
driver of a fire engine was compelled to stop at a red traffic light even if he saw 200 yards
down the road a blazing house with a man at an upstairs window in extreme peril and the
man's life would be lost by waiting. Lord Denning accepted that the driver would commit an
offence against the Road Traffic Regulations if he crossed the red light. In the civil case of
Southwark LBC v Williams [1971], where defendants in dire need of housing
accommodation entered empty houses owned by the local authority, it was held that the
defence of necessity did not apply. Lord Denning MR justified the rule on the ground that:
"... if hunger were once allowed to be an excuse for stealing, it would open a door through
which all kinds of lawlessness and disorder would pass... . If homelessness were once
admitted as a defence to trespass, no one's house could be safe. Necessity would open a
door which no man could shut. It would not only be those in extreme need who would
enter. There would be others who would imagine that they were in need, or would invent a
need, so as to gain entry." Edmund-Davies LJ held: "The law regards with deepest suspicion
any remedies of self-help, and permits those remedies to be resorted to only in very special
circumstances. The reason for such circumspection is clear- necessity can very easily
become simply a mask for anarchy."
There has been no general recognition of necessity as a defence, it has been
permitted to operate under various guises, on a piecemeal basis, for example, in medical
cases of the case R v Bourne [1939], the defendant gynaecologist performed an abortion on
a young girl who had been raped. He had formed the opinion that she could die if permitted
to give birth, and the operation was performed in a public hospital, with the consent of her
parents. The defendant was found not guilty of "unlawfully procuring a miscarriage"
following a direction from the trial judge to the jury that a defendant did not act
"unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted
in good faith, in the exercise of his clinical judgement. It is now within the Abortion Act
1967. However, necessity may never be a defence to a charge of murder. In R v Howe
[1987], the House of Lords affirmed Dudley and Stephens (1884).
In Re F, Lord Goff specifically recognised the existence of the defence of necessity
and applied it Re F (Mental patient sterilisation) [1990] 2 AC 1
F was a 36 year old woman. She had a serious mental disability caused by an
infection when she was a baby. She had been a voluntary in patient in a mental hospital
since the age of 14. She had the verbal capacity of a child of two and the mental capacity of
a child of 4. She developed a sexual relationship with a fellow patient. Her mother and
medical staff at the hospital were concerned that she would not cope with pregnancy and
child birth and would not be able to raise a child herself. Other methods of contraceptives
were not practical for her. They sought a declaration that it would be lawful for her to be
sterilised. F was incapable of giving valid consent since she did not appreciate the
implications of the operation.
Held: The declaration was granted. It would be lawful for the doctors to operate
without her consent.
The most liberal application of the defence was seen in the unusual case of Re A
where the defence of necessity was allowed for the offence of murder in relation to a life
saving operation to separate conjoined twins: Re A [2001].
Thus it can be seen that the defence of necessity is generally only successfully
applied in medical cases. Outside of this the defence of duress of circumstances has largely
taken over many cases which traditionally would have come under necessity. The defence of
duress is still quite restrictive but is perhaps more amenable than the defence of necessity.
 Proposals For Reform: The Law Commissions
The Law Commission (1974) proposed that a general defence of necessity be
introduced into English law.
However, the Law Commission (1977) rejected the idea, going so far as to say that if
a defence of necessity already existed at common law, it should be abolished. It felt that
such a defence to a charge of murder could effectively legalise euthanasia in England. It felt
that specific statutory provisions already covered those areas where the defence might be
most needed. For minor offences it argued that prosecutions were unlikely and, in any
event, the sentencing policy of the English courts was such that people convicted in these
situations would probably receive a minimal sentence, say, an absolute or conditional
discharge.
The Law Commission (1985) referred to these “totally negative” proposals and said
that it would not do to rely on prosecutorial discretion. Instead they proposed a defence of
necessity called “duress of circumstances” which would apply to all crimes except
attempted murder and murder.
The Law Commission (1992) and (1993) proposed that the defence of duress of
circumstances be available to all crimes including murder. The Draft Criminal Law Bill, 1993,
(Law Com. No. 218), clause 26 provides:
“(1) No act of a person constitutes an offence if the act is done under duress of
circumstances.
(2) A person does an act under duress of circumstances if- (a) he does it because he
knows or believes that it is immediately necessary to avoid death or serious injury to himself
or another, and (b) the danger that he knows or believes to exist is such that in all the
circumstances (including any of his personal characteristics that affect its gravity) he cannot
reasonably be expected to act otherwise. It is for the defendant to show that the reason for
his act was such knowledge or belief as is mentioned in paragraph (a).”
The defence would not apply to a person who knowingly and without reasonable
excuse exposed himself to the danger known or believed to exist; the accused would have
the burden of proving that he had not so exposed himself if the question arose.
In conclusion, defence of necessity may apply when an individual commits a criminal
act during an emergency situation in order to prevent a greater harm from happening. Its
application is limited by several important requirements:
1. The defendant must reasonably have believed that there was an actual and specific
threat that required immediate action
2. The defendant must have had no realistic alternative to completing the criminal act
3. The harm caused by the criminal act must not be greater than the harm avoided
4. The defendant did not himself contribute to or cause the threat