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Self-Defence, Necessity and Duress: Understanding the Relationship

Published online by Cambridge University Press:  09 June 2015

Jeremy Horder
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Extract

The distinctions that may be drawn between self-defence, necessity and duress are interesting as a matter of theory, but may also be important in practice. In some jurisdictions, for example, duress and necessity are no defence to murder whereas self-defence is a defence available in principle to all crimes. In such jurisdictions, in homicide cases, the point at which one reaches the boundaries of self-defence and enters upon the terrain of necessity may thus be of crucial significance. Drawing on Suzanne Uniacke’s theory of self-defence, I would like to suggest that each defence can be distinguished by a different key issue. In necessity cases, the key issue is the moral imperative to act: what matters is whether in the circumstances it was morally imperative to act, even if this might involve the commission of wrongdoing, in order to negate or avoid some other evil. In duress cases, the key issue is the personal sacrifice D is being asked to make: should D be expected to make the personal sacrifice involved in refusing to give in to a coercive threat, rather than avoid implementation of the coercive threat by doing wrong? In self-defence cases, the key issue is D’s legal permission to act: where V unjustly represented a threat to D (normally, although not exclusively, through his—V’s—conduct), the question is whether necessary and proportionate steps were taken by D to negate or avoid the threat. For, D has a legal permission to take necessary and proportionate steps to negate or avoid an unjust threat, even if (exceptionally) these involve the use of lethal force. So baldly stated, the differences between the defences may seem obvious. Few common law jurisdictions, and few commentators, however, have appreciated the full significance of the differences, as we shall shortly see.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 143 - 165
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. This is so, for example, in England and Wales: see R. v. Howe, [1986] Q.B. 626 [hereinafter Howe).

2. The significance of the distinction between necessity and duress will be explained in due course.

3. Suzanne Uniacke, Permissible Killing: The Self-Defence Justification of Homicide (Cambridge: Cambridge University Press, 1994).

4. For a fuller analysis, see Uniacke, ibid, on whose original account of self-defence I shall be relying in this paper.

5. See further, P.R. Glazebrook, “Structuring the Criminal Code: Functional Approaches to Complicity, Incomplete Offences and General Defences” in A.P. Simester & A.T.H. Smith, eds., Harm and Culpability (Oxford: Clarendon Press, 1996) 196.

6. See Uniacke, supra note 3 at 32–34.

7. English law conceals the requirement for both necessity and proportionality in the notion that the force used defensively must have been “reasonable.”

8. See Uniacke, supra note 3 at 158ff.

9. With the consequence that if the victim must repel the child’s attack with lethal force, he may be acquitted on the grounds of self-defence if the child is 10 or over; but must be convicted of murder if the child is under 10, necessity being no defence to murder.

10. A variety of authorities discussing the matter are helpfully given by J.C. Smith & B. Hogan, Criminal Law, 8th ed. (London: Butterworths, 1996) at 264.

11. H.L.A. Hart & A.M. Honoré, Causation in the Law, 2d ed. (Oxford: Clarendon Press, 1985) at 361.

12. See text accompanying note 40.

13. See R. Nozick, Anarchy, State and Utopia, (Oxford: Blackwell, 1974) at 34–35, cited by Uniacke, supra note 3 at 73.

14. Uniacke, supra note 3 at 74–81.

15. One might contrast threats with dangers, in that a danger is an evil one will avoid, in the normal course of things, so long as one is careful. A unexploded bomb is always a danger, but a bomb which has actually been set to go off is a threat.

16. Where the objective justification in question is moral rather than legal see J. Horder, “Redrawing the Boundaries of Self-Defence” (1995) 58 Mod. L. Rev. 431 at 435.

17. R. v. Dudley and Stephens (1884), 14 Q.B. 273 [hereinafter Dudley and Stephens].

18. J.C. Smith & B. Hogan, supra note 10 at 257–258; See also J.C. Smith, Justification and Excuse in the Criminal Law (London: Stevens, 1989) at 78–79.

19. Uniacke, supra note 3 at 15–17.

20. Criminal Code s.34(2).

21. See generally, J. Raz, Practical Reason and Norms, 2d ed. (Princeton, NJ: Princeton University Press, 1990) at 15ff and J. Gardner, “Justifications and Reasons” in Simester & Smith, supra note 5.

22. Hence, a third party would be entitled to intervene to prevent K using force on X, given the absence of any guiding justificatory fact giving a moral reason to use force on X, in a way that he or she would not be entitled to do where X was really attacking Y. See Uniacke, supra note 3 at 16.

23. See, e.g., the argument of The Law Reform Commission of Canada, Criminal Law The General Part: Liability and Defences (Working Paper No.29) (Ottawa: Supply and Services Canada 1982), at 90–91, cited by Uniacke, supra note 3 at 31.

24. Cf. Coke, 1 Co. Inst. 127a/b on the conviction for mayhem in the following case: “A young strong and lustie rogue, to make himself more impotent, thereby to have the more colour to begge or to be relieved without putting himself to any labour, caused his companion to strike off his left hand.”

25. See the discussion by Uniacke of these examples supra note 3 ch. 4.

26. Uniacke, supra note 3 at ch. 6. This last qualification is necessary to account for cases in which someone has been posing an unjust threat that would justify the use of force to negate it, but ceases to pose the threat before the use of the force actually becomes necessary. In such a case, clearly, once the threat has ceased to exist the use of force is no longer justified in self-defence.

27. See Uniacke, supra note 3 at 26–29, 145–46.

28. Supra note 17.

29. This kind of argument is frequently encountered in textbook commentary: see, e.g., Smith & Hogan, supra note 10 at 258.

30. See Horder, supra note 16 at 432; and Uniacke, supra note 3 at 181–82.

31. Sometimes the moral justification for acting on or disregarding legal rights will be roughly equal on both sides. To vary Bacon’s famous example, suppose we are both at risk of drowning, and we both swim to a plank that will support the weight of only one of us. Arriving by the plank at the same time we struggle for access to it, and I am drowned when I weaken first. In such cases, we both have an equal moral right to attempt to secure access to the plank, even though neither of us is an unjust threat to the other, and thus we both technically infringe each other’s legal rights in the struggle. Once you are safely on the plank, however, having used only necessary and proportionate force to secure your position, any attempt by me to unseat you will be an unjust threat, and you will be acting self-defensively in resisting me. See Uniacke, supra note 3 at 149–50; and Horder, supra note 16 at 436.

32. See text infra note 54.

33. Supra note 17.

34. Supra note 1.

35. Smith & Hogan, supra note 10 at 251 (footnotes added). The passage is taken from Smith, supra note 18 at 77–78.

36. See Uniacke, supra note 3 at 164–77.

37. Ibid, at 167.

38. Ibid, at 167–68.

39. As Uniacke points out {supra note 3 at 168), if I can stop Z from ducking, and do so, I am using Z as a shield in the course of self-defence against the missile. This might provide me with basis for some kind of excuse, by analogy with duress of circumstances. This will be discussed further below. See text infra note 73.

40. See text at supra note 11.

41. They may, for example, break what would otherwise be a continuous chain of causation. See Hart & Honoré, supra note 11.

42. Uniacke, supra note 3 at 166. For the original example, see P. Foot, “The Problem of Abortion and the Doctrine of Double Effect” in P. Foot, Virtues and Vices, and Other Essays in Moral Philosophy (Oxford: Blackwell, 1978) ch. 2.

43. Uniacke, supra note 3 at 169.

44. Ibid, at 167.

45. Ibid, at 164–66.

46. See, e.g., Uniacke’s discussion of the man in the tunnel: ibid, at 170–71.

47. Ibid, at 14.

48. Raz, supra note 21 at 90–91, 196–97.

49. See Uniacke, supra note 3 at 14–15.

50. Ibid. at 196ff.

51. Raz, supra note 21 at 27.

52. See Uniacke, supra note 3 at 172–76.

53. Indeed, it follows that conditions of necessity sometimes create exclusionary reasons for action (see Raz, supra note 21 at 35–39), in that it would be wrong in some circumstances even to consider acting on the balance of reasons.

54. See, e.g., A. Brudner, “A Theory of Necessity” (1987) 7 Oxford J. of Legal Stud. 339; and M. Bayles, “Reconceptualising Necessity and Duress” in M. Corrado, ed., Justification and Excuse in the Criminal Law (New York: Garland, 1994) at 492.

55. See generally, J. Griffin, Value Judgement: Improving Our Ethical Beliefs (Oxford: Oxford University Press, 1996).

56. See, e.g., J. Finnis, J. Boyle & G. Grisez, Nuclear Deterrence, Morality and Realism (Oxford: Clarendon Press, 1987).

57. See Griffin, supra note 55 at 98–102.

58. United States v. Holmes, 26 Fed. Cas. 360 (1841).

59. See Griffin, supra note 55.

60. On the distinction between values we should honour, and those we should promote, see P. Pettit, “Consequentialism and Respect for Persons” (1989) 100 Ethics 116.1 am not relying on this distinction in quite this form here. My contrast is between honouring innocent life, and promoting innocent life or lives (not promoting the value of innocent life).

61. See generally, J.J. Thomson, “Killing, Letting Die, and the Trolley Problem” (1975–6) 59 The Monist 204.

62. Although it might be a controversial matter for some theorists whether saving more individual lives promotes the value of life. See J.M. Taurek, “Should the Numbers Count?” (1976/1977) 6 Phil. & Publ. Affairs 293.

63. See further, R.M. Dworkin, “Rights as Trumps” in J. Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984) 153.

64. Supra note 17.

65. See Brudner, supra note 54 at 363.

66. Uniacke, supra note 3 at 11.

67. Raz, supra note 21 at 34.

68. Which is not to say, of course, that such a reason could not be outweighed by other reasons, in appropriate circumstances. On the distinction between operative and auxiliary reasons, see Raz, supra note 21 at 33–35.

69. Clearly, objective values can also be my values, but then they are not solely my values.

70. See, e.g., F. v. West Berkshire Health Authority, [1989] 2 All E.R. 545; and S. Gardner, “Necessity’s Newest Inventions” (1991) 11 Oxford J. of Legal Stud. 125.

71. For the view that excuses require that there have been no realistic opportunity to obtain official assistance, see J. Horder, “Criminal law: Between Determinism, Liberalism and Criminal Justice” (1996) Current Legal Prob. 159.

72. See G. Lamond, “Coercion, Threats, and the Puzzle of Blackmail” in Simester & Smith, supra note 5 especially at 220.

73. Smith & Hogan, supra note 10 at 238.

74. Things might be different, of course, if someone else in the queue consented to be injured, so that the woman would not be harmed by the madman, but I am assuming that this is not the case.

75. See S. Uniacke, “Killing Under Duress” (1989) 6 J. of Applied Phil. 53 at 55–61. Even if this is true, the reasons for taking the avoiding or negating action may remain entirely agent-specific (in my sense: a reason for me to do something, but not ipso facto for others to do it). In duress cases, unlike necessity cases, it may matter to the threatener that I personally do as he says, rather than someone else volunteering in my place.

76. I include within the notion of agent-specific values the case in which the values are those of a group. If the madman threatens to kill at random one of a group of persons unless one of them pulls the stranger’s hair, this is a duress case, not a necessity case.

77. See generally, J. Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992).

78. See Uniacke, supra note 3 at 11–26. See also S. Uniacke, “What are Partial Excuses to Murder?” in S. Yeo, ed., Partial Excuses to Murder (Sydney, NSW: Federation Press, 1991) 1.

79. See Glazebrook, supra note 5 at 203–11.

80. Ibid, at 213.

81. See text supra note 71.

82. See text supra note 70.

83. See generally, A. McColgan, “In Defence of Battered Women who Kill” (1993) 13 Oxford J. of Legal Stud. 508.

84. See text supra note 77.

85. The insane, for example, are exempted from liability, rather than excused, in part because they are not amenable to questions of desert in regard to excuse. See Horder, supra note 71.