Self-defense, duress and necessity are the three types of affirmative defenses as their core element is to

affirm or allow the D's action to be permissible under the excuse that such action could be deemed
reasonable in the circumstances. Hence, this may remove the criminal culpability of the offence from
the victim although he may have reached all the necessary element required to convict of the offence.
We shall look at each of the defenses respectively and compare them to see any similarities and
differences.

Firstly, there is self-defense, which under the Criminal Law act 1967 is defined as a person who may use
reasonable force in prevention of crime or in assisting a lawful arrest. The statue allows the force to be
used only to prevent a crime from happening, it does not allow it to be used in retaliation (Wilkinson).
Beckford lays out the test of self-defense stating that the use of force must be necessary and that the
force used has to be reasonable. These rules are consolidated in the Criminal Justice and Immigration
Act 2008 where the proposition that whether the force used was necessary depends upon whether D
had a genuine belief s.43(4)(a). It does not matter whether the belief was mistaken or not s.43(b)(1) and
(2). However, mistaken belief may not be valid if it has been induced as a result voluntary in toxication
s.43(5). This was applied in the case of O' Connor where the self-defense could not be used to quash the
conviction but rather substitute Murder with manslaughter on the basis that intoxication may serve as
defense to the crimes of specific intent and not the basic intent. Similarly, to determine whether the
force is reasonable depends on whether it is proportionate to the threat posed s.76(6). Determination
of reasonability is an objective test and has to be decided according to the circumstances in which D was
placed (Palmer) and common law gives following directions; there is no duty of retreat upon the
defendant (Field) where defendant aware that the victim was coming to harm him stood his ground and
in retaliation killed him was availed the defense. Similarly, the person is not denied the defense although
he may have himself caused the attack (Rashford). In Rashford, D organized a revenge attack on V. V in
turn brought friends and retaliated but was killed. The courts held that D could not be refused the
defense on the argument that he had caused the attack as long as he used the force for self-defense,
and it was proportionate to the threat perceived. As well as law permits a person to commit a pre-
emptive strike if they perceive the threat to be imminent AG Reference (no2 of 1983).

However, the reasonability test has become lenient in the householder case following the introduction
of subsection 5A to CJIA 2008 by Crimes and Courts Act which regards that force would be
unreasonable in the circumstances as D believed them to be if it was grossly disproportionate in those
circumstances. However, the jury can deem the force which is not grossly disproportionate to be
unreasonable (Collins v Secretary of state for Justice) where the courts held that the jury must be asked
that whether the degree of force used by D was grossly disproportionate and whether it was reasonable
in the circumstances as D believed them to be. If both answers are affirmative then defense would
succussed, otherwise it would fail.

The other defense is that of Duress. It may be considered as a necessity but on lower intensity, it is
usually raised when the defendant infringes a criminal prohibition to avoid peril or imminent threat of
death (Murnaghan J in A-G v Whelan). Hence Conway, when D Mistakenly believed officers who were
trying to arrest his passenger as Gang members was allowed the defense and his conviction was
quashed on the basis that duress of circumstance was not left to the trial judge. The duress of
circumstance was extended beyond the scope of driving offences in Pommell where D was guilty of
keeping a machine gun to which he argued that he had kept the gun to keep its owner from firing and
that he was intending to give it to the police. The limitations regarding the duress of circumstance is
described in the case of Hasan.

In case of duress by threats, a person is excused for committing a crime done under the pressure of
threats. The founding principle regarding duress of threat was given in Graham where the Lord Lane CJ
gave the test to determine duress by considering that whether D had acted in a reasonable belief that
situation feared serious injury or death and whether another person with reasonable firmness would
have acted in the same way. This test has been further developed by Lord Bingham in the case of Hasan
in which he gave the requirements that the threat given must be of death or serious injury. In
Valderrama-Vega, the moral threat to expose D’s Homosexuality did not constituted as duress by threat.
The threat must affect D, his family or someone for whom D considers himself to be responsible
(Shayler). Further, the belief of the defendant has to be reasonable even if it is mistaken (Graham). It
does not allow that D was inherently coward (Hearty). D must have acted directly under the threat; if he
would have acted anyway then the defense would not be grounded Valderrama. Furthermore, D should
not have any escape routes available that he might reasonably be expected to take (Gill). D was
convicted or the theft of his employers lorry. It was said as obiter that such circumstance would render
the defense unavailable as he had other measure available to flee from the situation such as pressing
the alarm bell. Also, the defendant must not have subjected himself to the threat Sharpe; D had joined a
gang and participated in robbery where a person was killed. D argued that he had gun placed on his
forehead but Courts denied the defense on the face that D himself joined the gang. Duress is a defense
to all crimes except murder. However an exception to this rule is that where the defendant is a
secondary party to murder (Dpp v Lynch) but Howe has subsequently overruled Lynch by stating that
attempted murder affords no defense.

Necessity provides a defense where a person is faced with two bad outcomes where his nonadherence
to the law may be justified in pursuit of some greater good. This founding principle was stated in Perka v
Queen. However, the defense may not be available for murder as in Dudley and Stephenson, where the
courts explicitly affirmed that ‘one cannot kill to save his own skin’. In Buckoke v GLC, the courts
condemned the jumping of traffic lights to respond to an emergency. Lord Denning Justified it by giving
the flood gate argument as it would result in unexpected application from the general people making
their need as an excuse. Hence, the defence is limited to the circumstances where the harm threatened
is that of death or serious injury and the person is not choosing lesser of two evil but rather he has no
choice.

Necessity has been accepted by the courts in one limited context which is medical intervention where
doctors can validate their action through courts. Hence, the doctors in ReF said that it would be lawful
for them to perdom sterilisation operation on the patient as she sexual relation in the mental hospital
and she was unable to consent. However, a declaration may not alwayss be required if the situation is
that of emergence nature. However, this does not validate the doctor's action if he acts in denial of the
patient's wishes ReC. Necessity may provide a defense to Murder as seen in ReA (Conjoined Twins)
where doctors had to separate to give life to one over the cost of another which would otherwise result
in death of both. Brooke LJ while deciding ReA gave the test that that the act should be done to avoid
inevitable and irreversible evil, the act should be within the reasonable limit and that evil done must be
proportionate to the evil avoided.