Necessity: Duress of Circumstances or Moral Involuntariness?

Authors Organisations
Type Article
Original languageEnglish
Pages (from-to)1-28
Number of pages28
JournalCommon Law World Review
Volume43
Issue number1
DOI
Publication statusPublished - Mar 2014
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Abstract

While the Canadian Supreme Court has accepted necessity as an excuse on the basis of moral involuntariness, English and Welsh courts have adopted a different route by incorporating excusatory necessity into duress of circumstances. The objective element of this defence prevents the defendant's characteristics from being taken into account, and assumes a level of courage. In a defence where the fear emotion is the prevalent feature, this paper questions whether judges in England and Wales have taken the wrong path by implementing a necessity defence as a form of duress

Keywords

  • necessity, excuse, justification, character, choice theory, capacity theory, fear emotion, courage