Necessity and coercion in Scots criminal law: a critical analysis

Barclay, Grant (2022) Necessity and coercion in Scots criminal law: a critical analysis. PhD thesis, University of Glasgow.

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Abstract

This thesis provides a critical analysis of the substantive defences of necessity and coercion in Scots law. These are affirmative defences which do not deny the commission of the crime charged, but instead offer an explanation as to why the accused should nevertheless escape criminal liability. The approach taken to these defences in Scots law has tended to appear fragmented and unprincipled, with a strong focus on their limitations rather than their underlying rationale, such that the basis for exculpation is unclear. This in turn has ramifications for our understanding of the relationship between these two defences: necessity and coercion are seemingly distinguished by an arbitrary appeal to the nature of the threat and whether the accused ‘chose’ the crime they committed. With the above issues identified, this thesis proceeds with the following aims: 1) to conduct a historical (and comparative, where appropriate) review of necessity and coercion to discover what principles or factors shape the current rules for these defences in Scotland; 2) to explore the normative basis for exculpation when persons are forced to commit offences under extreme pressure and/or emergency, based on the emerging concepts of a constrained will and constrained choice; and 3) to determine how this normative understanding and division of the bases for exculpation might provide a more principled approach to the necessity and coercion defences in Scots law than presently exists.

This thesis concludes that necessity and coercion should exculpate based on a normative distinction focused on whether the actor suffered from a constrained choice (such that they tried to do the best in unfavourable circumstances) versus a constrained will (i.e. normal reasoning has been impaired by an emotional reaction, caused by the circumstances). An extensive analysis of emotions in criminal law defences is undertaken in support of this argument, highlighting that conduct undertaken in emotion does not vitiate capacity and is thus an appropriate site for moral (and hence legal) blame. This new framework for necessity and coercion is thereafter utilised to reconsider the core requirements of these defences in contemporary Scots law: that the threat be immediate; and that the threat be of death or serious injury. This re-examination reveals that the immediacy requirement in both defences should be replaced with one focused on the reasonableness of the response, and that the scope for coercion, understood as a constrained will, may be widened to include offences committed while suffering from a deprivation of liberty.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Subjects: K Law > K Law (General)
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Chalmers, Professor James and Leverick, Professor Fiona
Date of Award: 2022
Depositing User: Theses Team
Unique ID: glathesis:2022-82797
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 12 Apr 2022 08:41
Last Modified: 12 Apr 2022 08:45
Thesis DOI: 10.5525/gla.thesis.82797
URI: http://theses.gla.ac.uk/id/eprint/82797

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