Defences Essay Plan

Question 1

Necessity Intro

Answer 1

Is necessity justifiable or just an excuse?
Justifiable = no moral wrong (act was right)

Excuse = conduct is morally wrong (but denies blameworthiness the actor should not be punished)

Question 2

Is Necessity excusable?

Answer 2

Is necessity exculpatory? Liberalism
The defendant made a difficult moral choice, picking the lesser of two evils — but still did something wrong (e.g. harm or violate a right)

This excuses them because most people would do the same in those extreme circumstances.

It’s more about human frailty or moral pressure - ALIGN WITH THE LIBERALIST POINT OF VIEW - , it implies that the individual’s wrongful act was compelled by circumstances rather than a free choice. In this context, the defendant is not fully culpable because their actions were motivated by external threats or pressures (such as the need to prevent harm to themselves or others). The state, therefore, absolves the individual from criminal liability in recognition of their lack of meaningful freedom to act otherwise.

BLAME SHOULD BE AT MOST REDUCED BUT CAN ARGUE THAT IT SHOULD NOT BE DONE AT ALL but the act remains technically unlawful

Think about case of Dudley Stephens and argue how it is not morally right but should be done

Question 3

Is necessity justificatory? Moralism

Answer 3

Overriding of rights (justificatory) Think about the case of Re F (Mental patient: Sterilisation) [1990]

The defendant’s action was morally and legally right under the circumstances, because it prevented a greater harmor promoted a legitimate interest.

• The act is not wrong at all — it’s affirmatively right.
  The court is saying: “In this rare case, breaking the law was the correct course of action.”

Re F (1990):

Question 4

Exculpatory view for Duress

Answer 4

Westen’s Character Theory

-> Defendant’s actions are not representative of their true character - Moral blameworthiness should be understood with sympathy

-> Defense acknowledges that under extreme external pressure, the defendant may act in a way that is out of character and morally involuntary

-> Human frailty — the defendant’s actions may have been forced upon them by threats or circumstances beyond their control

one that excuses the defendant’s action)

Question 5

Criticism of Excapultory defences Duress

Answer 5

**Complete Exculpation: ** While duress might explain why the defendant acted as they did, it doesn’t always justify why such actions should be completely excused

Duress is excluded from the offence of murder or attempted murder because “one ought to die himself”

Question 6

Duress is it justificatory?

Answer 6

Dressler

“Lesser harm” model seems to fit the defense.

If D is forced to commit a crime in order to avoid a greater harm, that could justify their actions.

If D is coerced into committing an illegal act, like rape, to prevent a greater harm, such as the threat of death or serious injury to their loved one, the justification is that the defendant is committing the lesser harm in a situation of moral necessity.

Question 7

Critiques of Justificatory Duress

Answer 7

Courts (as seen in Howe [1987] and Shayler [2001]) reject duress as a justification for murder.

Justificatory defences can cover more serious crimes than excuses, because they have a higher threshold to be satisfied.

BUT But others argue the opposite: that only justification gives a morally coherent reason to permit the killing — and that excusing someone for murder (even under threat) diminishes the seriousness of taking a life.

Question 8

Argument for Duress?

Answer 8

Excuses = better though we cannot use it for all it is better than understanding than Justifiable