criminal-law england-and-wales
If a defendant was threatened with grievous bodily harm unless he caused grievous bodily harm to another, why can&#39;t he rely on necessity?
<p>Kindly see the embolded sentence. Why can't such a defendant rely on Necessity, but can rely on Duress of Circumstances?</p>
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<h3>2.5 Duress of Circumstances</h3>
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<p>In some cases where the defendant does the lesser of two evils he or she will be able to rely on
the defence of duress of circumstances. For example, in <em>Pipe v DPP</em><sup>86</sup> a man was driving his ill
son to hospital and broke the speed limit. Owen J held that the jury should have been allowed
to consider whether he could rely on duress of circumstances (or necessity as he called it). As
will be discussed in Section 5 of this chapter, duress provides a defence where the defendant
reasonably believes that the circumstances are such that unless he or she commits a crime he
or she or another will suffer death or serious injury and that a reasonable person in the same
situation would have committed the crime. This defence clearly overlaps to some extent with
necessity. Being faced with the threat of death which the defendant avoids by driving through
a red light would fall under the defence of duress of circumstances; it would also be said to
be the lesser of two evils. However, duress of circumstances is in some sense narrower and in
some sense wider than necessity. It is narrower in that duress of circumstances is not available
in order to avoid a threat less than death or grievous bodily harm <strong>[abbreviated GBH]</strong>. However, where it is
available necessity may provide a defence even where the harm threatened is less than serious
harm. Duress of circumstances is wider than a necessity defence would be, in that it covers
the situation where the defendant reasonably believed there to be a threat of death or serious
injury, even if there was in fact no such threat. A necessity defence would not cover such a
situation.<sup>87</sup> Further, <strong>if the defendant was threatened with grievous bodily harm unless he or
she caused grievous bodily harm, although the two kinds of harm may be the same and so he
or she may not be able to rely on necessity</strong>, he or she may be able to rely on duress of circumstances
and argue that a reasonable person would have given in to the threat.</p>
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<p><sup>86</sup> [2012] EWHC 1821 (Admin).</p>
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<p>Herring, <em>Criminal Law: Text, Cases, and Materials</em> (2020 9 ed). p 670.</p>

<p>Because (at least in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a>) <em>duress</em> refers to being <strong>compelled</strong> to commit a crime <strong>by another person</strong> (e.g., by threats), while <em>necessity</em> refers to being forced to do <strong>in response to circumstances</strong> (e.g., running a red light to avoid getting hit by another vehicle).</p>
<p>See, e.g., <a href="https://www.justia.com/criminal/defenses/duress/" rel="nofollow noreferrer">Justia</a>:</p>
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<p>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.</p>
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<p>This may not be true in England and Wales, though, as your example gives running a red light as duress of circumstances.</p>
