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  • Print publication year: 2011
  • Online publication date: October 2011

3 - Coping with uncertainty

Summary

There has always been an understanding of circumstances of external compulsion that lead one to break the letter of the law. However, the law has persistently struggled to accommodate the defences of necessity and duress; indeed, a debate continues today as to the very existence of the defence of necessity in some jurisdictions. A brief reading of classical and institutional writers demonstrates that the law's understanding of the defences in question has evolved slowly over time and illustrates the confusion and inconsistencies, typified by the works of Blackstone, which have blighted the debate. The challenge facing the law is to work out when, how and why the law should exculpate those who act due to threats or dire circumstances, a dilemma which has origins deep in the legal past.

Although Arnolds and Garland have suggested that, as a result of the lack of case law, ‘it is impossible to demonstrate with any degree of satisfaction an historical development of the law of necessity’, this chapter aims to ascertain if such a defence was recognised at any time since records began and, if so, what form it took. Prior to the eighteenth century, reported case law was fraught with insufficiencies, which led in turn to the importance of employing institutional writers who were typically immersed in the everyday workings of the courts and drew on their experience in courts to inform their writings and, as such, constitute very valuable historical sources. The following section draws on these sources to explore chronologically the emergence and evolution of the defences. It traces the diverging views on this area over time in an attempt to ascertain if there is authority for asserting that those acting under duress or necessity should have their charges or sentences reduced rather than having a full defence to criminal charges available to them.

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Society, SeldenThorne, Samuel E.Baker, J. H.Readings and Moots at the Inns of Court 105 LondonSelden Society 1990 273
Williams, G.Criminal Law: The General PartLondonStevens 1961 725
McAuley, F.McCutcheon, P.Criminal LiabilityDublinRound Hall/Sweet & Maxwell 2000
Bacon, F.Elements of the comman Laws of EnglandLondonAssignees of I. More 1630
Brudner, A.‘A Theory of Necessity’ 1987 7 Oxford Journal Legal Studies339
Stephen, J.A History of the Criminal Law in EnglandLondonMacmillan 1883
Stephen, J.Digest of Criminal LawLondonMacmillan 1887 24
Stephen, J.General View of the Criminal Law of EnglandLondonMacmillan 1890 76
Simmons, J. C.Castaway in ParadiseNew YorkSheridan House Inc 1998 50
Smith, J. C.Justification and Excuse in the Criminal LawLondonStevens and Sons 1989 67
Spencer, J.‘Trying to Help Another Person Commit a Crime’Smith, P. F.Criminal Law: Essays in Honour of J. C. SmithLondonButterworths 1987 164
Smith, K. J. M.Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957OxfordClarendon 1998 350
Office of the Director of Public ProsecutorGuidelines for ProsecutorsDublin 2007 16
New Zealand Law CommissionSome Criminal Defences with Particular Reference to Battered DefendantsWellingtonL.C. 2001 86.
Moloney, E.Secret History of the IRANew YorkW. W. Norton & Company 2002
Dershowitz, A.The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of ResponsibilityBostonLittle, Brown and Company 1994 17
Irish Law Reform CommissionConsultation Paper on Duress and NecessityDublinLRC 2006 86
Irish Law Reform CommissionReport on Defences in Criminal LawDublinLRC 2009 188
Law Commission of England and WalesA New Homicide Act for England and Wales, A Consultation PaperLondonTSO 2005 184
Law Commission of England and WalesMurder, Manslaughter and InfanticideLondonTSO 2006 120
Irish Law Reform CommissionReport on SentencingDublinLRC 1996
Irish Law Reform CommissionReport on Homicide: Murder and Involuntary ManslaughterDublinLRC 2008
Law Commission of England and WalesCriminal Law: Legislating the Criminal Code Offences Against the Person and General PrinciplesLondonHMSO 1993 31.7.
Smith, J. C.Hogan, B.Criminal LawLondonButterworths 1999 365
Horder, J.Provocation and ResponsibilityOxfordClarendon Press 1992 113
A Hart, H. L.Punishment and Responsibility, Essays in the Philosophy of LawOxfordClarendon Press 1968 13
Dressler, J.Understanding Criminal LawNew YorkLexis Publishing 2001 14
Bentham, J.An Introduction to the Principle and Morals of LegislationLafleur, L. J.New YorkHafner Publishing Co 1961 187
Corrado, M. L.‘Introduction’Corrado, M. L.Justification and Excuse in the Criminal Law: A Collection of EssaysNew YorkGarland 1994 xii
Ashworth, A.Principles of Criminal LawOxford University Press 2003 228