​KembaraXtra-Case Law-Cairns (1999) CA
​Area of Law: Criminal Law – Defence of Necessity
Facts:

• The defendant (D) was driving his car late at night.
• The victim (V) climbed onto the bonnet of D's car and lay face-up against the windscreen.
• D, feeling frightened, decided to continue driving, believing it was the best course of action.
• D also claimed to be frightened by V's friends, who were following his car, shouting and gesturing, in an attempt to prevent V from remaining on the bonnet.
• D drove for a considerable distance before V fell off the car.
• Tragically, D then drove over V, causing V to fracture his spine and become paralysed.
• D was charged under section 20 of the Offences Against the Person Act 1861.
• D sought to rely on the defence of necessity.

Trial Judge's Direction to the Jury:

• The judge instructed the jury that the defence of necessity was only available if D's action was "actually necessary to avoid the evil in question."

Outcome at Trial:

• D was convicted.

Appeal:

• D appealed his conviction.

Decision of the Court of Appeal (CA):

• The Court of Appeal allowed the appeal and found that the trial judge had misdirected the jury.
• The jury's focus should have been on D's perception of the threat he faced.
• The jury were to consider whether D's actions were reasonable and proportionate in the circumstances as he perceived them.
• Crucially, the jury did not have to consider whether the threat was real or actual.

Key Legal Principle Established/Reinforced:

• In assessing the defence of necessity, the court will consider the defendant's subjective perception of the threat.
• The defendant's actions must be reasonable and proportionate to the perceived threat, not necessarily to an objectively assessed threat.

Study Points:

1. Understand the factual scenario: Visualise the events as they unfolded.
2. Identify the charge: Know the offence D was accused of.
3. Recognise the defence raised: D's attempt to use necessity.
4. Distinguish the trial judge's direction from the Court of Appeal's direction: This is the central point of the case. What did the judge say, and why was it wrong? What did the Court of Appeal say the jury should have considered?
5. Focus on the "perception of the threat": This is the critical element. D does not need to prove the threat was objectively real, only that he genuinely perceived it as such.
6. Consider "reasonableness and proportionality": Even with a perceived threat, the action taken must be a reasonable response to that threat. This is an objective element applied to the subjective perception.
7. Contrast with objective necessity: The defence of necessity does not require a situation of absolute, objective necessity.

Self-Assessment Questions:

• What were the two main threats D claimed to be facing?
• How did the trial judge instruct the jury on the defence of necessity?
• What was the Court of Appeal's primary criticism of the trial judge's direction?
• Explain the significance of "D's perception of the threat" in the context of the necessity defence, as per this case.
• What two factors did the Court of Appeal state the jury should consider when assessing D's actions?
• Does the threat have to be objectively real for the defence of necessity to be available, according to DPP v Cairns? Explain your answer.

​KembaraXtra-Case Law-(Pommell (1995) CA)-The Defence of Necessity
​This guide outlines the key principles and limitations of the defence of necessity as established in Pommell (1995) CA.

Case: Pommell (1995) CAFacts:

• The defendant (D) was convicted of possessing a prohibited weapon and ammunition without a firearms certificate under the Firearms Act 1968.
• D claimed the defence of necessity, stating he took the gun the previous night from an individual threatening others.
• His intention was to surrender the firearm to the police.
• The trial judge disallowed the defence, ruling that D had failed to report to the police immediately.

Legal Issue:

• Can the defence of necessity be raised when the defendant's actions, though intended to prevent immediate harm, do not involve an immediate surrender to authorities?

Held (Court of Appeal Decision):

• Core Principle of Duress/Duress of Circumstances: The underlying rationale of these defences is to permit an individual to contravene the literal wording of the law in exceptional circumstances to avert a "greater evil" befalling themselves.
• Distinction in Application: This defence is not available where the defendant commendably breaks the law with the primary intention of preventing another party from committing a "greater evil."
• Requirement for Desisting: To successfully invoke the defence of duress of circumstances, the defendant must have "desisted from committing the crime as soon as he reasonably [could]" (per Kennedy LJ). This implies an obligation to take reasonable steps to end the unlawful conduct and report to the authorities without undue delay.
• Scope of the Defence: While previous cases concerning necessity primarily involved road traffic offences, the defence is not confined to these situations. Due to its close relationship with the defence of duress, necessity can potentially apply to all criminal offences, with the explicit exceptions of murder and attempted murder.

Key Takeaways for Study:

1. Purpose of Necessity: Understand that necessity permits breaking the law to avoid a greater evil.
2. Self-Preservation vs. Protecting Others: Differentiate between using necessity for personal safety and using it to prevent harm to others. The latter situation has stricter requirements.
3. Immediacy and Reporting: The Pommell case highlights the critical importance of reporting

​KembaraXtra-Case Law-DPP v Harris (1994)
1. Case Name and Citation:

• DPP v Harris (1994)

2. Factual Background:

• Defendant: A police officer (D).
• Circumstances: D was driving an unmarked police car on police duty, covertly following another vehicle.
• Suspicion: D believed the target vehicle contained individuals planning an armed robbery.
• Offence: D failed to stop at a red traffic light to maintain surveillance on the target vehicle.
• Consequence: D collided with another car.
• Charge: Driving without due care and attention.
• Defence Raised: Necessity.

3. Legal Issue:

• Can the defence of necessity be relied upon for the offence of driving without due care and attention in these circumstances?

4. The Court's Decision (Holding):

• The defence of necessity was not available to the defendant.

5. Reasoning and Key Principles:

• Distinction in Offences: The court distinguished between different driving offences.
  • The defence of duress of circumstances may be available for a charge of reckless driving.
  • However, the present offence of driving without due care and attention was considered less severe and did not attract the defence in this instance.
• Nature of the Offence: The failure to stop at a red light, in this scenario, was described as a minor infringement. The court noted that D could have waited a few seconds and edged forward carefully.
• Requirements for Necessity: The defence of necessity would only apply in exceptional cases.
• Proportionality and Reasonableness: For the defence to succeed, the defendant's actions must have been:
  • Reasonable in the circumstances.
  • Proportionate to the necessity of the situation.

6. Importance and Takeaways for Study:

• Limitations of Necessity: This case demonstrates that the defence of necessity is not a broad get-out clause for all unlawful acts, particularly minor traffic offences.
• Specific Offence Matters: The type of driving offence charged is crucial when considering the applicability of defences like duress of circumstances or necessity.
• High Threshold for Necessity: The defence requires a compelling justification, where the unlawful act was the only reasonable and proportionate means to avert a greater harm. Simply being on police duty or having suspicions is not sufficient to justify a traffic violation.
• Focus on "Exceptional Cases": Reflect on what constitutes an "exceptional case" where necessity might apply to a driving offence. This would likely involve immediate and grave danger that could not be avoided by any lawful means.

7. Further Study Questions:

• What are the key elements of the defence of duress of circumstances? How does it differ from necessity?
• Can you think of hypothetical scenarios where the defence of necessity might successfully be raised for a driving offence? What specific factors would be essential?
• How does the concept of "proportionality" apply to the defence of necessity in criminal law?

​KembaraXtra-Case Law-Cichon v OPP (1994) OBD
​Case: Cichon v OPP (1994) OBD
Key Issue: Availability of the defence of necessity when a law is broken to prevent harm to an animal.
Factual Summary:

• The defendant (D) took a pit bull terrier into a public place without a muzzle.
• D's justification for this action was that the dog had kennel cough, and he believed it would be cruel to muzzle a dog that was coughing.
• D was subsequently convicted of an offence under the Dangerous Dogs Act 1991.
• D attempted to rely on the defence of necessity, but this defence was denied.

Legal Principle and Reasoning:

1. Distinction between Duress and Necessity: The court highlighted a crucial distinction between the defences of duress and necessity:
   • Duress: Involves a situation where the defendant's will is overborne by threats.
   • Necessity: Involves situations where the defendant's freely adopted conduct is justified by the circumstances.
2. Availability of Necessity for Animal Welfare: The central question before the court was whether the defence of necessity could be invoked when the defendant broke the law specifically to avoid serious harm to an animal.
3. Purpose of the Dangerous Dogs Act 1991: The Act was legislated with a clear primary purpose:
   • Protection of the Public: The statute's objective was to safeguard the public from the potential dangers posed by certain breeds of dogs.
4. Statutory Exclusion of Necessity: The court determined that the Dangerous Dogs Act 1991 itself implicitly or explicitly denied the defence of necessity in this context.
   • The Act did not permit individuals to make a subjective "value judgment" that prioritised the welfare of the dog (avoiding cruelty from a muzzle) over the safety and well-being of the public.
   • Therefore, the statutory framework superseded any common law defence of necessity that might otherwise have been considered.

Outcome:

• The defence of necessity was not available to the defendant.
• The conviction under the Dangerous Dogs Act 1991 was upheld.

Key Takeaways for Study:

• Understand the fundamental difference between the defences of duress and necessity.
• Recognise that statutory offences, particularly those designed for public safety, may expressly or implicitly exclude common law defences like necessity.
• Be aware that the courts will scrutinise the underlying purpose and wording of legislation when considering the applicability of defences.
• The defence of necessity is not a general licence to break the law,

​KembaraXtra-Case Law-Willer (1986) CA - Defence of Necessity/Duress of Circumstances
​Case: R v Willer (1986) CA
Key Issue: Availability of the defence of necessity (or duress of circumstances) where a defendant commits a criminal act to escape imminent harm.

Facts of the Case:

• The defendant (D) was convicted of reckless driving.
• D drove his vehicle on the pavement at a slow speed.
• This action was taken to escape from a gang of youths who intended to inflict violence upon him.
• D attempted to rely on the defence of necessity.
• The trial judge ruled that the defence of necessity was not available to D.
• Consequently, D changed his plea to guilty.

Legal Principles & Reasoning:

• The Court of Appeal's Decision: The Court of Appeal held that the defence of duress of circumstances was applicable in this scenario.
• Availability of the Defence: The court stated that this defence should have been left to the jury to consider, regardless of whether the specific elements of necessity had been definitively established or whether the defence was considered generally available in all circumstances.
• Temporal Element: The critical factor highlighted was that the threat of violence from the gang was existing and imminent. The defence of duress of circumstances operates while such a threat is present.

Key Takeaways for Study:

• Distinction between Necessity and Duress of Circumstances: While D argued necessity, the court found duress of circumstances to be the more appropriate defence. Understand the nuances between these two defences, although they often overlap.
• Elements of Duress of Circumstances (Implied from the case):
  • Imminent Threat: There must be an immediate and serious threat of death or serious injury.
  • Reasonable Response: The defendant's actions must be a reasonable and proportionate response to the threat. (While not explicitly detailed as a failure in this brief note, this is a general requirement for the defence).
  • No Opportunity for Lawful Escape: The defendant must have had no reasonable opportunity to escape the threat by lawful means.
• Trial Judge Error: The trial judge's failure to allow the jury to consider the defence was deemed an error. This underscores the importance of presenting relevant

​KembaraXtra-Case Law-Woods v Richards (1977) OBD - Study Notes
​Case Summary

• Parties: Woods (appellant) v Richards (respondent).
• Court: OBD (Original British Digest - Note: This likely refers to a specific legal reporter or court level not universally known. For modern study, focus on the High Court of Justice, Queen's Bench Division, if the original case was there).
• Year: 1977

Facts

• Defendant: A police driver responding to an emergency call.
• Action: Pulled onto the hard shoulder to bypass a queue, believing it to be clear.
• Incident: Collided with a broken-down vehicle on the hard shoulder, causing damage.
• Outcome: Convicted of driving without due care and attention.

Legal Issue

• Could the defence of necessity be raised by a police driver in this situation?
• Should a special standard of care apply to police drivers responding to emergencies?

Holding (Decision)

• Necessity was not a defence in this case.

Reasoning

• No precedent: There was no legal authority supporting the argument for a special standard of care for police drivers.
• Statutory interpretation: The Road Traffic Act 1972, s 3 (driving without due care and attention) did not contain any provisions allowing for exceptions for police drivers.
• Elements of necessity: The existence of the defence of necessity depends on the degree of emergency or the alternative danger that the driver was trying to avert.
• Judicial restraint: Natural sympathy for police drivers does not empower the court to re-write the legal requirements of an offence.

Key Takeaways

• Strict liability for traffic offences: Police drivers, like all drivers, are subject to the same legal standards regarding road traffic offences.
• Limited scope of necessity defence: The defence of necessity is narrowly construed and requires a demonstrable and immediate danger to be averted.
• Parliamentary intent: Exceptions to general road traffic laws must be explicitly provided for by Parliament in legislation.

​KembaraXtra-Case Law-R v Martin (1989)-Defence of Necessity (Duress of Circumstances) I. Introduction to the Defence of Necessity

• English law, in exceptionally limited situations, acknowledges a defence of necessity.
• This defence acknowledges that an individual may be compelled to act unlawfully to prevent a greater harm.

II. Types of Necessity

• Duress (Pressure from Another's Wrongful Conduct):
  • The most frequent manifestation of necessity.
  • Arises from wrongful threats or violence exerted by another person upon the accused's will.
• Duress of Circumstances (Pressure from Objective Dangers):
  • An equally valid form of necessity.
  • Arises from objective dangers that threaten the accused or others.
  • This is conveniently termed 'duress of circumstances'.

III. Key Holding in R v Martin (1989)

• Per Simon Brown J: English law does recognise a defence of necessity, but only in extreme circumstances.
• This defence can arise not only from the direct wrongful actions of another (duress) but also from the pressure of unavoidable, objective dangers (duress of circumstances).

IV. Essential Elements to Understand for Study:

• Rarity: The defence of necessity is not a general excuse for unlawful actions; it is reserved for truly exceptional situations.
• Causation: The unlawful act must be a direct consequence of the pressure (either from another person or objective circumstances).
• Proportionality: The harm avoided must be significantly greater than the harm caused by the unlawful act. (This element is implied by the concept of "extreme circumstances" and the aim to prevent a "greater harm").
• Imminence: The threat or danger must be immediate or imminent. (This is a common characteristic of duress and necessity defences and should be considered).

V. Areas for Further Consideration/Application:

• In what specific scenarios could 'duress of circumstances' realistically arise? Think about situations where there is no immediate human threat but an overwhelming environmental or situational danger.
• How would a court distinguish between a genuine defence of necessity and a voluntary assumption of risk or a convenient excuse?
• Consider the potential overlap and distinctions between the defence of duress and duress of circumstances.

Study Tip: When revising this, try to recall real-world or hypothetical scenarios where someone might feel compelled to break the law due to extreme circumstances. Ask yourself: "Was this an 'extreme circumstance' where the harm avoided was clearly greater than the harm caus

​KembaraXtra-Case Law-Southwark LBC v Williams (1971) CA
​This case addresses the legal principle of necessity as a defence to the tort of trespass.

Case Name & Citation:

• Southwark LBC v Williams (1971) CA

Factual Background:

• The defendants were homeless individuals.
• They entered an empty property owned by the local authority (Southwark LBC).
• Their actions constituted squatting in the property.
• The local authority sued them for trespass.

Legal Issue:

• Can homelessness be a valid legal defence to an action for trespass to land, based on the defence of necessity?

Key Judgments & Reasoning:Lord Denning's Judgement:

• Rejection of Necessity as a Defence in this Context: Lord Denning emphatically rejected the idea that homelessness could serve as a defence to trespass.
• "Slippery Slope" Argument: He argued that admitting homelessness as a defence would create a dangerous precedent, making all properties vulnerable.
• Unmanageable Consequences: He stated, "If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut."
• Potential for Abuse: Lord Denning cautioned that allowing such a defence would not be limited to those in genuine extreme need; others might claim or invent need to gain entry.

Edn1Lmd Davies LJ's Judgement:

• Requirement of Imminent Peril: Edn1Lmd Davies LJ reinforced the narrow scope of the necessity defence.
• Urgency and Immediacy: He stated that successful pleas of necessity have historically been confined to situations involving an "urgent situation of imminent peril."
• Distinction from the Present Case: This implies that homelessness, while a serious issue, did not constitute the immediate, life-threatening danger typically required for a successful necessity defence.

Key Takeaways for Study:

1. The Defence of Necessity is Strictly Limited: This case demonstrates that the defence of necessity in tort law, particularly in cases of trespass, is applied very narrowly.
2. Homelessness is Not Sufficient for Necessity: While a pressing social problem, homelessness, in itself, is not recognized as a legal justification for trespassing on private property.
3. Imminent Peril is Crucial: To succeed with a defence of necessity, there must be a clear and immediate threat of danger that can only be averted by the infringing act.
4. Preventing a "Slippery Slope": The courts are cautious about creating defences that could be easily exploited and lead to widespread disregard for property rights.
5. Distinction between Social Problems and Legal Defences: The case highlights the difference between acknowledging a social issue (like homelessness) and its legal standing as a defence to a civil wrong.

To Study This Material Effectively:

• Define Trespass: Ensure you understand the elements of the tort of trespass to land.
• Define Necessity: Understand the general principles of the defence of necessity in tort law. What are the typical requirements?

​KembaraXtra- Indian Evidence Law - Bharatiya Sakshya Adhniyam -Previous Good Character Relevant in Criminal Cases [Section 47 ]
Statutory Provision
Section 47 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the relevance of character in criminal proceedings. It provides that in criminal cases, the fact that the accused person is of good character is relevant.
This provision allows the accused to produce evidence showing that he is a person of good reputation or good disposition. Such evidence may help the court in determining whether the accused is likely to have committed the offence.

Meaning and Scope
The rule is based on the general understanding of human conduct that a person of good moral character is less likely to commit a crime. Therefore, evidence of good character is considered relevant in criminal trials.
The accused may introduce evidence of general good character to create a presumption that he is unlikely to have committed the offence alleged against him.
However, this type of evidence is only supportive or corroborative in nature. It cannot by itself prove innocence.

Evidentiary Value of Good Character
Evidence of good character is admissible but its evidentiary value is limited.

1. It may help the accused in doubtful cases by creating a reasonable doubt regarding his involvement in the offence.
2. It may influence the court while determining the punishment or sentence.
3. It may support the presumption that the accused is unlikely to commit the alleged act.

However, good character cannot outweigh clear and positive evidence of guilt. If strong and reliable evidence proves that the accused committed the offence, character evidence cannot be used to defeat such proof.
The weight to be given to evidence of good character ultimately depends on the discretion of the court and the circumstances of each case.

Judicial Interpretation
In Habeeb Mohammad v. State of Hyderabad, the Supreme Court observed that the character of the accused can be relevant in determining his innocence or guilt. Evidence of good character may remove suspicion against the accused and may also be considered by the court while deciding the appropriate punishment.

Conclusion
Section 47 recognizes the importance of character evidence in criminal trials. It allows the accused to rely on his good reputation as a factor indicating that he is unlikely to commit the offence. Nevertheless, such evidence is not decisive and must always be weighed against the other evidence produced in the case. The final determination of its value lies within the judicial discretion of the court.

​KembaraXtra-Case Law-R v Gotts (1992)-Duress and Attempted Murder
​Facts:

• Defendant (D): Aged 16.
• Alleged Offence: Charged with attempted murder.
• Circumstances: D was instructed by his father to kill his mother (who was separated from the father).
• Alleged Threat: D claimed his father threatened to shoot him if he did not comply.
• Action Taken: D stabbed his mother.
• Outcome: A passer-by intervened, preventing further injury. The mother survived, though seriously injured.

Legal Issue:

• Can the defence of duress be raised for the offence of attempted murder?

Held (Decision of the Court):

• The defence of duress is not available for the charge of attempted murder.

Reasoning of the Court:

• Logical Inconsistency: The court found no justification in law, morality, or logic for distinguishing between a person who completes a murder under duress and one who attempts it under duress.
• Intent: The mental element (intent) required for attempted murder is considered greater than that for murder. The court highlighted that it was a matter of chance that the defendant was charged with attempted murder rather than actual murder.
• No Defence for Attempt: To allow the defence of duress for attempted murder would, in essence, permit a defence where the intent to cause serious harm (or death) was present, even if the act did not reach its ultimate conclusion.

Key Takeaways for Study:

1. Core Principle: Duress is generally available as a defence to most criminal offences, except in specific circumstances where the law deems it inappropriate.
2. Attempted Murder Exception: R v Gotts firmly establishes that duress is not a defence to attempted murder.
3. Underlying Rationale: The decision is rooted in the idea that one who intends to kill (even under duress) should not escape criminal liability for that intent, particularly when the intent for attempt is arguably higher than for murder itself.
4. The "Chance" Factor: The court's emphasis on the "pure chance" of the charge highlights the principle that the law should not be circumvented by the fortuitous intervention of a third party. The defendant's intent and actions remain central to the criminal liability.

Self-Study Questions:

1. What were the key factual circumstances that led to the charge against D in R v Gotts?
2. What was the central legal question before the court in this case?
3. What was the final decision of the court regarding the availability of duress for attempted murder?
4. Explain the court's reasoning for denying the defence of duress to an attempted murderer. Focus on the arguments of legal, moral, and logical justification.
5. How does the court's discussion of the "intent required for attempted murder" influence its decision?
6. Why is the fact that the mother survived considered a matter of "pure chance" in the context of the defence of duress?
7. Can you identify any potential arguments against the court's decision in R v Gotts? (Consider this critically).
8. How does this case inform your understanding of the limitations of the defence of duress in English criminal law?