Friday, August 9, 2019

Terms 'necessity' and 'duress of circumstances' Case Study

Terms 'necessity' and 'duress of circumstances' - Case Study Example "It includes the definition of specific offenses and general principles of liability." Black's Law Dictionary, 5th Ed. Apart from other actions that lead to harm to the community, and for which civil responsibility can be fixed, "criminal law is the primary instrumentality for preventing people from intentionally or recklessly destroying life and property" Simester, A P. and Sullivan, G. R. Criminal Law: Theory and Doctrine (2004) 2nd edition, (revised 2004) Hart Publishing. Criminal liability can be ascertained from two basic constituents of an action: "actus reus (actually doing an act of a criminal nature), and mens rea (the intention to carry out a criminal act)." Ashworth, A. (2003). In some criminal actions, the rule of strict liability is applied even if one of above is missing like in cases murder, assault damage to the property etc. However, common law principles provide for a defence to the accused. "The defendant is now seen as possessing a moral right to defend his autonomy, which is rendered superior to the assailant's rights by assailant's aggression." Ashworth, A (2003). Necessity and duress of circumstances are both defences based on excuse or justification. The main characteristic in the defence of justification available to the accused the main factor is that the act can be tolerated by society. According to Fletcher, this utilitarian attitude towards the non-punishment of harm-causers is supplemented by the intuitions of justice and retribution, to give an accurate account of the theory of justification. Ibid at pg. 285. Simon-Brown J elaborated upon English law on the "necessity" defence. He opined that English Law does in extreme circumstances, recognize a defence of necessity. It can arise from objective dangers threatening the accused or others in which case it is conveniently called "duress of circumstances". Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: (1) Was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious injury would result' (2) If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted' If the answer to both these questions is yes, then the jury could acquit, and a defence of necessity would have been established. Duress of circumstances cannot excuse the commission of an offence after the time when the threat has

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