1B - Duress And Necessity Flashcards
What does duress by threats mean?
D was themselves threatened
What does duress by circumstances mean?
D forced to commit offence due to the circumstances he finds himself in
What does necessity mean?
D felt it was necessary
Duress by threats: threatened with death or serious injury
Volderrana-Vega
Duress by threats: not available for murder
Howe
Wilson
Duress by threats: not available for attempted murder
Gotts
Duress by threats: the seriousness of the threat can be cumulative
Volderrana-Vega
Duress by threats: The threat of death/serious injury can be against?
- D
- His partner
- Immediate family
Duress by threats: 2 Stage Test
Graham
Followed by Martin DP - can take into account any characteristics that may make D more susceptible to fear threats
Duress by threats: What does Bowen show in relation to the 2 stage test?
accepted the following can be used in the second stage of the test
- age
- pregnancy
- recognised mental illness
- gender
Duress by threats: No safe avenue of escape
Gill
Hudson and Taylor
Duress by threats: Cole
The threat MUST be to commit the specific offence committed
Duress by threats: cannot be self-induced duress
Sharp
Shepherd
Hasan
Duress of circumstances: due to their surrounding circumstances
Willer
Conway
Martin
Duress by circumstances: same two stage test as Graham
Martin
Duress by circumstances: not just for driving offences
Pommell
Duress by circumstances: available for all offences except
- murder
- attempted murder
Pommell
Duress by circumstances: sufficient that D reasonably perceived a threat of physical injury or death
Cairns
Duress by circumstances: Abdul Hussain
Defence is allowed even if its not the specific offence
Necessity: D forced to commit offence to prevent a worse evil occuring
Dudley and Stevens
Necessity: Civil cases
Re F (medical patient: sterilisation) Re A (conjoined twins)
Duress of circumstances v necessity
circumstances: D forced to commit the offence due to the circumstances he finds himself in
necessity: D forced to commit offence to prevent a worse evil from happening
Necessity = duress of circumstances
Shayler
Duress of threats: Howe
Duress is not a defence for murder
Duress of threats: Wilson
Duress can not be a defence to murder applies even where the D is young and less able to resist pressure
Duress of threats: Gotts
Duress is not a defence for attempted murder
Duress of threats: Valderrama-Vega
CoA said jury was entitled to look at the cumulative effects of all the threats but if none of the threats are a threat of death or serious injury then it’s not allowed
Duress of threats: Graham
- Was the D compelled to act as they did because they reasonably believed they had good cause to fear serious injury/death?
- If so, would a sober and reasonable person of reasonable firmness with the same characteristics of D have responded in the same way?
Duress of threats: Martin (DP)
Duress and self defence should be treated in the same way regarding belief in circumstances
Duress of threats: Bowen
Low IQ cannot be taken into account in the second stage of the Graham test
Duress of threats: Gill
If there is a safe avenue of escape, duress is not available
Duress of threats: Hudson-Taylor
Police protection may not be effective in deciding if going to the police was realistic the jury should consider age and the circumstances of threats and risks associated
Duress of threats: Abdul-Hussain
The threat need not be immediate but it had to be imminent in the sense that it was hanging over them
Duress of threats: Cole
Must be threatened to commit the specific offence
Duress of threats: Sharp
Defence failed as D joined a violent gang knowingly
Duress of threats: Shepherd
Defence was allowed because when he joined the gang he had no knowledge that they would use violence
Duress of threats: Hasan
Defence of duress is excluded where D voluntarily associates with others engaged in criminal activities and ought to have foreseen the risk of being subjected to threats of violence
Duress by circumstances: Willer
Defence was allowed as D was compelled to do as he did, as he was under duress in those circumstances
Duress by circumstances: Conway
Defence of duress is available if on an objective standpoint, the D was acting in order to avoid the threat of death or serious injury
Duress by circumstances: Martin
The Graham test for duress of threats also applies to the duress of circumstances
Duress by circumstances: Pommell
Duress of circumstances is available to all offences except murder, attempted murder and treason
Duress by circumstances: Cairns
It does not have to be an actual or real threat, as long as D perceives a threat of death/serious injury
Necessity: Dudley and Stephens
Necessity is not available as a defence to murder
Necessity: Re F (mental patient: sterilisation)
It’s lawful for Doctors on the grounds of necessity to operate on or give other medical treatment to adult patients disabled from giving consent
Necessity: Re A (conjoined twins)
Necessity is available if its to save a life meaning its a possible defence to murder
Necessity: Shayler
CoA discussed defences of duress and necessity and held that duress of circumstances and necessity were in effect the same
