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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.
The development of the defences of duress and necessity in the courts over many centuries has resulted in some undesirable consequences, including the growth of the defences, and the conditions attaching to them, in a way which has not always been consistent with their stated rationales. The importance of consistency and coherence between the defences as a whole and their established rationales should not be underestimated and this chapter analyses the principal elements of the defences in light of both their existing rationales and those proposed in this book. Running through this discussion of the modern case law is a consideration of the varying theories of duress. The Aristolean view of duress, as a factor affecting the voluntariness of an act and overbearing the will of the defendant, dominates the common law system today. A pure utilitarian, retributivist or denunciatory theory may also be employed to justify the existence of the duress defence. However, the theory of duress favoured here is a moralised account of the defence, focusing on the deserts of the offender. So, this chapter is prescriptive, setting out the elements of the defences, but it also puts forward a more conceptually coherent rationale for the defences focused on normative judgments that is reflective of the modern understanding of emotions and the interaction of law and morality.
Despite being typically viewed as a purely utilitarian defence, the necessity defence has been described in Aristolean terms, focusing not on the greater good, but the difficult situation in which the defendant finds himself and the resulting constraint on his choices. It is submitted that there is still a case to be made for a pure utilitarian defence of ‘lesser evils’ focusing on the minimisation of harm and the analysis of the elements of the defences and case law which follows aims to illustrate this and show just where such a defence would be accommodated within legal theory. Of course any discussion of this nature necessarily involves a reflection on the basis of the defence and some consideration will be given to this aspect of the defences.
The emotions have always been of central concern to men. In every endeavour, in every major human enterprise, the emotions are somehow involved.
Emotions dominate human action and their importance to human behaviour and consequential importance to the criminal law must be recognised. Emotions are of relevance to the criminal law on a number of levels, from the role they play in punishment to the emotional experiences of victims. The effect of emotions on behaviour and how the emotions experienced by perpetrators of crime should affect the attribution of responsibility and punishment is of interest to criminal theory and to the defences of duress and necessity in particular. However, the role of emotions in conditioning individual responsibility has not featured significantly in criminal theory and doctrine to date. At best, the criminal law and its literature has intermittently considered the issues raised and this raises the question of how the conception of criminal responsibility in law should accommodate the modern understanding of emotions and human behaviour.
A major challenge for the law is to formulate a compelling reason why it facilitates either partial or complete exculpation on the basis of some emotions such as anger but not others such as fear. The law has adopted a piecemeal approach and accepted defences based on some emotions but refused to acknowledge the role of other emotions in offender behaviour. For example, under Irish law, the defence of provocation reduces a charge of murder to manslaughter when anger causes the defendant to lose self-control. Yet, the law does not allow any defence to an individual who kills an innocent person in fear for his or her life or the life of a loved one due to threats from another individual or difficult circumstances. Although the defences of duress and necessity are available for crimes of a lesser magnitude, their basis is not the fear experienced by the defendant. It has been suggested that in self-defence, duress and necessity ‘fear is . . . the dominant psychological state of the person pleading any of these defences’, a fact which is not reflected in the rationale of those defences. Reilly and Mikus observe that:
[t]he possibility of losing self-control as a result of extreme fear is never mentioned in the defences of duress and self-defence. Under extreme fear in the face of duress the actor is understood always to be capable of choosing whether or not to submit to the threat.
The failure of the criminal law to engage fully with emotion theory in modern times is to be regretted. Although to some extent there are implicit understandings of emotion evident, it is important for the law to engage with emotions explicitly as they go to fundamental notions of culpability and responsibility. It is clear that key components of these concepts can only be fully understood when the crucial role of emotion in human behaviour is recognised. The preferred view of emotions is the cognitive appraisal theory, an evaluative understanding under which emotions are seen as rational phenomena which provide constructive information on our values and priorities and guide behaviour. In contrast, the mechanistic understanding of emotion sees emotions as physiological urges which are not rooted in rationality and this view has been rejected accordingly. It is clear, therefore, that contrary to commonly held opinion, emotions are not irrational forces which are the antithesis of responsibility. Rather they contribute to responsibility. This study has also highlighted the important role of moral judgment in the criminal law. Moral judgment is vital to criminal law and to this extent there is an important intersection between law and morality. The acceptance of the role of emotion in behaviour does not involve suspending judgment and the fact that an individual has acted while emotional does not negate evaluation.
This prompts the question of how the law governing duress and necessity should be reformulated to take proper account of these concerns. The current distinction between the defences of duress and necessity, the source of the threats, is not a coherent or supportable differentiation. There is no valid reason why the law should treat one who violates the letter of the law due to threats which are human in origin any differently from one who acts due to a desperate situation. It is submitted that the existing defences should be recast in the form of two alternative defences reflecting the different considerations in justification and excuse. The first is a reformulated duress defence, an excusatory defence which largely covers what is currently understood to fall within the ambit of duress, duress of circumstances and parts of necessity. The second defence is a justification-based defence of lesser evils which will exonerate an accused when he or she maximises utility.
The law has struggled for many years with the problem of how to accommodate those who commit crimes due to threats or circumstances. The modern ambivalence surrounding the defences of duress and necessity has its origins in the legal past. To date the defences of duress and necessity have been couched in terms such as compulsion, involuntariness and human frailty, resulting in the true nature of the defences being hidden. Psychologists and legal theorists have begun to re-examine the role of emotions in human action, including their effect upon behaviour and choice. In light of recent breakthroughs, Eimear Spain considers how the emotions experienced by those who act due to threats, both human and natural in origin, should affect the attribution of criminal responsibility and punishment. The understanding of emotions extrapolated in this book points towards a new rationale for the existing defences of duress and necessity.
The aim of this book is to explore the availability of a criminal defence to one who acts in contravention of the letter of the law as a result of threats or circumstances, situations traditionally encompassed by the defences of duress and necessity. The defence of duress by threats, or duress per minas, is available to one who commits an act which ostensibly breaks the law of the land as a result of threats of a serious nature, while necessity and duress of circumstances operate to exculpate one who prima facie contravenes the law due to dire circumstances. The analysis contained herein aims to provide an original perspective on the approach taken in the criminal law to such defendants by embarking upon a fresh consideration in light of both ancient philosophy and more recent breakthroughs in modern psychology.
The defences under review in this book have engaged minds in many of the most stimulating debates in criminal law theory, from abstract philosophical considerations to more practical concerns relating to the formulation of individual criminal defences. Foremost among these is an exploration of the role of emotions in criminal behaviour. Through advances in modern psychology and neuroscience our understanding of the origin, effect and constitution of emotions is becoming clearer and it is imperative to reassess the criminal law in light of this enhanced awareness. This book aims to ascertain how the emotions experienced by an individual acting in response to threats or difficult circumstances affect his or her responsibility, both moral and criminal.
The concerns which surround the recognition of duress and necessity as general defences in the criminal law are heightened when the availability of the defences to a charge of murder is considered. There has been much debate over the years on this controversial topic, focusing on why offences which involve the taking of human life should be singled out for special consideration. Particular to the offence of murder is a concern about the sanctity of life but there is also general concern about allowing an offender to depart from the strictures of the law in these circumstances, and it is not done lightly. The foundation for the exclusion of murder from the ambit of the defences must be ascertained in order to validate the exception and, significantly, to clarify just where the line is drawn.
Although the debate over the years has taken place in the absence of a consideration of emotions, the broad concerns remain the same and include the supreme importance of human life. A strict interpretation of the sanctity of life principle would suggest than a human being never has the right to take another life. However, exceptions to this general rule have been acknowledged almost universally for many centuries. The most obvious example in the criminal realm is the doctrine of self-defence. Various interpretations of the doctrine, which allows a full defence to one who takes a human life in self-defence, are put forward, including the recognition of a right to kill contingent upon the need to save one's own life. An alternative, the forfeiture doctrine, suggests that the victim, by virtue of his or her status as aggressor, concedes his or her right to life in favour of the right to life of the defendant. Of concern in this book is whether the sanctity of life principle requires that those who kill under duress or due to necessity, in situations where the victim does not play the role of aggressor, should suffer conviction and punishment.
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