EITHER

a) Compare and contrast duress, self-defence and necessity.

Duress

The compelling of a person to undertake an action against his or her will by the threat of
physical or economic harm. A 'he made me do it' defence - an excuse.  

While duress is not a justification for committing a crime, it can serve as an excuse when a
defendant committed a crime because they were facing the threat or use of physical force. The
defense must establish that a reasonable person in the defendant’s position also would have
committed the crime. It resembles self-defense in some respects, since it arises from a threat of
imminent death or serious bodily injury, and it requires that the defendant had a reasonable
fear that the threat would be carried out. In addition, duress requires the defendant to show
that they had no alternative to committing the crime.

Types of Duress

In criminal law the defence of duress takes two different types

1. Duress by threats
2. Duress by circumstance

Duress by Threat

The defence of duress by threat was set out in A-G v Whelan [1993] IEHC 1 as arising in
circumstances where the defendant was ordered to commit an offence whilst subject to
threats of immediate death or serious personal violence so great as to overbear the
ordinary powers of human resistance.

Duress by Circumstance

Duress of circumstances arises where it is not a person that provides a threat to the
defendant but the nature of the situation. It might be that another person creates the
threatening situation but unlike duress by threat there is no requirement that a person
specifies to the defendant that a crime must be committed, so long as there is a sufficient
link between the situation and the crime.

Self-defence
Self-defense and defense of others are two criminal defenses that can be used when a criminal
defendant commits a criminal act but believes that he or she was justified in doing so. Although
our legal system generally discourages the use of force or violence against others, courts have
recognized that all individuals have the right to protect themselves from harm and may use
reasonable force in order to do so. Likewise, the defense of others defense also recognizes the
right to use reasonable force in defense of others who are threatened.

Imminent Threat

For both self-defense and defense of others, the threat faced must have been imminent such
that it put the criminal defendant, or the one he or she was defending, in fear of immediate
harm. This can be accomplished through words that imply a threat of force or an actual show of
force. However, mere offensive language is not enough to support a claim for self-defense.

Additionally, the defense of self-defense or defense of others is available only while the threat
is ongoing. After the threat has ended, the use of force is no longer appropriate. This would be
considered an act of retaliation, as opposed to self-defense.

Reasonable Fear

In addition to the threat being imminent, both self-defense and defense of others require that
the fear that caused the criminal defendant to act with force was reasonable. This means that
fear is assessed according to the reasonable-person standard, which asks what an ordinary and
reasonable individual would do under the circumstances. Thus, for instance, a defendant may
have been threatened by a man holding a toy gun and responded by assaulting or harming the
man. If a “reasonable man” would also have believed that the toy gun was a real threat and
have responded with fear as well, the defendant’s actions will likely be considered self-defense.

When a criminal defendant’s response does not meet the reasonable-person standard, but the
defendant did truly fear a threat of harm, this is called imperfect self-defense. Imperfect self-
defense will not act as a complete defense to the crime that is charged, but many states will
allow it as a defense that lessens the charges brought against the defendant or any possible
punishment he or she may face.

Necessity

A defense that permits a person to act in a criminal manner when an emergency situation, not
of the person's own creation compels the person to act in a criminal manner to avoid greater
harm from occurring. This defence arises where the defendant successfully argues that due to a
greater evil, it was necessary to commit the offence that he carried out. He had a choice
between committing a criminal offence or allowing himself or another to suffer. In some cases,
crimes have been held to be defensible on the basis that they were necessary. This (arguable)
defence overlaps with duress of circumstances, if it exists at all. In Mouse’s Case (1608),
throwing goods overboard could be considered necessary if it was done to save lives. Similarly,
in Vantandillo (1815), it was permissible for a smallpox victim to walk to a doctor, even if risking
spreading the disease in the process. R v Buckoke v GLC [1971] permits emergency vehicles to
ignore red lights. Lord Denning takes the alternative view, but suggests that such a driver
should not be prosecuted. In Southwark LBC v Williams [1971], Denning warned against the
spread of necessity as a defence, stating that it could open an unclose-able door.

Compare and contrast

The main difference is that duress means that the defendant committed a crime because
someone directly forced them to do it. Necessity involves a choice between two bad
alternatives that could not be avoided, which arose from the circumstances rather than the
actions of a specific person .Many people confuse the defense of duress with the defense of
necessity. Both of them are based on a defendant being forced to commit a crime to avoid
serious harm. The main response to either defense is that the defendant had another option to
avert the harm. Sometimes courts combine these defenses, but technically they are separate.
The main difference is that duress means that the defendant committed a crime because
someone directly forced them to do it. Necessity involves a choice between two bad
alternatives that could not be avoided, which arose from the circumstances rather than the
actions of a specific person. Self-defence is another example of necessity embodied in a more
narrowly defined defence. Despite these allowances for necessity related defences the courts
have been reluctant to recognise a general defence of necessity.Duress and necessity are
affirmative defenses. With them, a defense attorney can—if the evidence agrees—argue that
the defendant did something that’s typically illegal, but that doesn’t constitute a crime because
of extraordinary circumstances. Some courts look at the policies behind the duress and
necessity defenses and blend them together into one defense. These defenses, however, are
historically different and many courts treat them as such. (U.S. v. Bailey, supra; State v. Cole,
403 S.E.2d 117 (S.C. 1991).)

Necessity, like duress, involves the defendant acting unlawfully in order to avoid a threat of
immediate harm. Both defenses fail if the defendant had a reasonable alternative to violating
the law. So, how are they different Duress, on the one hand, arises from the actions of other
people—the classic example is one person forcing another to commit a crime at gunpoint.
Courts typically explain necessity, on the other hand, as a choice between two evils. If
circumstances give rise to a situation where the defendant must break the law in order to
prevent harm, the necessity defense may be in play. For the defense to succeed, the harm the
defendant causes can’t be greater than the harm she prevents.

Example: Alice holds a gun up to Joan’s head and tells her, “Drive me to the hospital as fast as
you can, or I’ll kill you.” They get in the car, and Joan drives with the gun pointed at her head. If
Alice is stopped for and subsequently charged with careless driving, she may have a viable
duress claim.