1B.6.3 Duress and necessity

Question 1

Two types of duress

Answer 1

• Duress by threats: The defendant was forced to commit a crime against their will because of threats that have been made to them.
• Duress by circumstances: The defendant was forced to commit a crime against their will because of the circumstances.

Question 2

What law governs the law on duress?

Answer 2

It is a common law defence

Question 3

Is Duress a complete defence?

Answer 3

Yes - if successful, the defendant will be found not guilty (acquitted).

Question 4

What offences can duress not apply to?

Answer 4

• Murder (Howe)
• Attempted Murder (Gotts)

Question 5

Howe (1987)

Answer 5

Held: Duress is not a defence for murder.

Question 6

Gotts (1992)

Answer 6

Held: Duress is not a defence for attempted murder.

Question 7

Which case established the test for duress (by threats)?

Answer 7

R v Hasan (2005)

Question 8

Hasan Test

Answer 8

1) There must be a threat to cause death or serious injury operating on the defendant’s mind.

2) The threat must be directed against the defendant or their immediate family or someone close to them.

3) The defendant’s response must have been reasonable based on the defendant’s characteristics.

4) There must be a ‘causal nexus’ between the threat and the crime.

5) There was no other option the defendant could have taken.

6) The defendant was not in a gang.

Question 9

1) There must be a threat to cause death or serious injury operating on the defendant’s mind.

Answer 9

There must be a threat of death or serious injury. Other threats can be taken into account by the jury but are not enough alone for duress.

• Case: Valderrama-Vega (1985)

Question 10

2) The threat must be directed against the defendant or their immediate family or someone close to them.

Answer 10

The threat has to be directed to family, someone close, someone the defendant is responsible for. The Law Commission suggested this should apply to complete stranger.

Question 11

3) The defendant’s response must have been reasonable based on the defendant’s characteristics.

Answer 11

The Graham test (1982) determines whether the defendant’s act was a reasonable response to the threat.

• Did the defendant act because they reasonably believed the threat of death/serious injury?
• If yes, would a sober person of reasonable firmness, sharing the same characteristics of the defendant have acted the same way?

Characteristics that the jury can take into account include age, pregnancy, serious physical disability, recognised mental illness, gender, but not IQ (Bowen (1996)).

Question 12

4) There must be a ‘causal nexus’ between the threat and the crime.

Answer 12

The threat must be to do a specific offence.

• Case: Cole (1994)

Question 13

Cole (1994)

Answer 13

Held: the defendant cannot use duress if there is no specified offence they were forced to do.

Question 14

5) There was no other option the defendant could have taken.

Answer 14

The threat must imminent.

• Cases: Gill (1963), Abdul-Hussain (1999)

Question 15

Gill (1963)

Answer 15

The defendant’s wife was threatened if the defendant did not steal a lorry. Held: duress could not be used because D had time to raise the alarm.

Question 16

Abdul-Hussain (1999)

Answer 16

Ds hijacked a plane as they feared they would be sent back to Iraq where they would be executed due to religion. Duress was allowed and held: Threat must be imminent but not necessarily immediate.

Question 17

6) The defendant was not in a gang.

Answer 17

A defendant cannot use the defence of duress if they accept the risks associated with being in a gang.

• Case: Hasan (2005)

Question 18

Hasan (2005)

Answer 18

D associated with violent drug dealer and was threatened if he did not burgle a house.

Held: no defence available as duress was self-induced. If D joins a violent gang or associates with violent offenders, they foresee (or should have foreseen) the risk of duress happening.

Question 19

Necessity

Answer 19

Where there are circumstances which force a person to act in order to prevent a worse evil from occurring. (The crime is the lesser of evils).

Question 20

Which case did the defence of necessity first arise?

Answer 20

R v Dudley and Stephens (1884)

Question 21

Dudley v Stephens (1884)

Answer 21

Ds ate a cabin boy after being 20 days at sea, 10 days without food/water. Ds argued necessity but this was rejected. No defence to murder.

Question 22

Do duress of circumstances and necessity follow the same test?

Answer 22

Yes - as held in the case of Shayler (2001).

Question 23

Shayler (2001)

Answer 23

Duress by circumstances and necessity are the same defence.

Three stage test:
1) Act is done to prevent greater evil
2) Evil is directed at the defendant or another
3) Act done is reasonable and proportionate

Question 24

Cases for necessity

Answer 24

• Re F
• Re A
• Shayler
• Dudley and Stephens

Question 25

Cases for Duress by Circumstances

Answer 25

• Willer (1986):
• Conway (1988)
• Martin (1989)
• Pommell (1995)
• Cairns (1999)
• Abdul-Hussain (1999)

Question 26

Can duress by circumstances be used for murder or attempted murder?

Answer 26

No, the same as duress by threats.

• Case: Pommell (1995)

Question 27

Willer (1986)

Answer 27

D drove on pavement to avoid gang of threatening youths. D charged with reckless driving. Held: duress by circumstances allowed as defence.

Question 28

Conway (1988)

Answer 28

D drove recklessly as passenger and thought 2 people were trying to kill him. Held: duress by circumstances.

Question 29

Martin (1989)

Answer 29

D was disqualified from driving but drove son to work because wife threatened suicide if he didn’t.

Held, jury should have been allowed to consider Graham test.

Question 30

In which cases was it held the court had to consider whether the D was available where the D reasonable percieved a threat of serious physical injury or death, even though there was no actual threat?

Answer 30

• Cairns (1999)
• Abdul-Hussain (1999)

Question 31

Three stage test for necessity / duress by circumstances

Answer 31

1) Act is done to prevent greater evil
2) Evil is directed at the defendant or another
3) Act done is reasonable and proportionate

• Case: Shayler (2001)