Affirmative Defences

Distinguishing affirmative defences and why it matters

Professor William Wilson
Learning objectives
At the end of this lecture you should be able
• To identify the essential elements in common of duress, self defence and necessity
• To identify the elements which differentiate the defences
• To understand that necessity and self defence are justification defences and duress is an
excuse defence
• To understand the significance of a justification as opposed to an excuse.
• Understand why it might make a difference to the question of guilt if the defence can
bring their defence within the umbrella of one of the defences as opposed to another.
• Apply the understanding gained above to solving the case studies appearing in the Study
Guide 11.10
Defences of reasonable reaction
• Duress, necessity and self defence have something in common:

• Someone is exposed to an immediate or imminent threat of harm

• D acts to prevent that harm occurring
• D’s action necessitates a breach of a criminal prohibition.
• D’s action is reasonable and proportionate
Defences of reasonable reaction
What’s the difference?

1. Duress is an excuse not a justification. The excuse is ‘Don’t blame me. I’m only human.’ Duress of circumstances, which is
necessity in its excuse form, is the same. Self defence and the other form of necessity are not excuses. They are justifications.
The claim here is that their action was permitted by the law.

2. Because duress (including duress of circumstances) is an excuse it is not available to murder or attempted murder. Self
defence is a defence to murder and in certain circumstances so is necessity.

3. Self defence is action taken against a wrongdoer posing an unjust threat to repel this threat eg an attacker. Duress and
necessity can be used as a defence even where an innocent person is victimised. Eg Re A (conjoined twins).

4. Self defence can only be used for crimes involving the use of force, including murder, so it cannot be used to justify traffic
offences or theft as no force is involved. Duress and necessity are available for (almost) all crimes. See 2 above.
Differentiating the defences
• In Re A (Conjoined Twins) [2001] Fam 147, permission from the High Court was sought by
doctors, caring for conjoined twins (Mary and Jodie) who shared a heart, to separate
them. Without the separation both twins would quickly die. Permission was sought
because the inevitable consequence of the operation would be the immediate death of
Mary, the twin lacking a heart.
Differentiating the defences
• Without authority from the High Court the doctors were at risk of a
murder conviction if they proceeded, because intentionally causing a
person’s death is murder

• If the operation was to be lawful it could only be because the law

permits an intentional killing in such circumstances. So what was the
defence?
Differentiating the defences
Self defence?

• Self defence is action taken against a wrongdoer, posing an

unjust threat, to repel this threat.
Differentiating the defences
Case Studies

• Jane pushes away David who is standing over her looking menacing.
Differentiating the defences
• David pulls out a gun and points it at Jane. Jane defends herself by
stabbing David with a kitchen knife
Differentiating the defences
• Necessity?

‘Necessity covers all cases where non-compliance with the law is excused by an
emergency or justified by the pursuit of some greater good. In order for an accused to
successfully argue a defence of necessity they must establish three points.
• First, there is the requirement of imminent peril or danger.
• Second, the accused must have had no reasonable legal alternative to the course of
action he or she undertook.
• Third, there must be proportionality between the harm inflicted and the harm avoided.’
Justice Dickson Perka v Queen (1984)
2 S.C.R 232
Necessity
Re A (conjoined twins) tells us that necessity in its justificatory form can even justify intentional killings. This
will be rare because killing an innocent person will rarely advance society’s collective interests.

• Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests,
because it denied her "inherent right to life." Given the conflict of the children's interests and the consequent
conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the
lesser of the two evils and so finding the least detrimental alternative."

• Key to the justification is that Mary was not being used as a means to an end. The death occurred as a side
effect of a justified action (saving the life of Jodie) rather than a means to an end. It would not be lawful for
doctors to kill one person and use their organs to save the lives of 6 others because this would be using the
victim as a means to an end.
Necessity

• Other examples of potential necessity situations are given in Activity

11.10 which you should now tackle.