9 - Necessity defences

Question 1

self defense

Answer 1

2 things will be examined - the jury decides:​

Was the use of force necessary​

Was the force reasonable in the circumstance​

Question 2

Coverage of self defense

Answer 2

covers -
actions needed to defend oneself
actions taken to protect another person
s3 criminal law act 1967 - actions taken to prevent a crime or arrest an offender

Question 3

Was the force necessary

self defense

Answer 3

objective test
if the v is running away its unlikely to be self defense

Question 4

Hussain and another 2010​

Answer 4

D’s house was broken in to by armed men. D and family were threatened but managed to escape they chased the attackers and beat up one of them they couldn’t argue self defence because they danger from the original attack was over

self defense

Question 5

reasonable degree of force

self defense

Answer 5

2008 act - pressurised situations are taken into account
assesed what the D thought was honestly and instinctively reasonable
force must be used when danger is ongoing, not after

Question 6

Genuine mistake

self defense

Answer 6

the jury have to decide whether force was necessary in the circumstances that the defendant honestly believed existed​

If the jury decide that D honestly believed that they were being threatened and reacted using reasonable force then the defence can be used​

S76 Criminal Justice and Immigration Act 2008​

The mistake has to be genuine as judged on the particular facts of the case​

Question 7

Williams 1987

Answer 7

D was on a bus when he though he saw a man assaulting a youth. In reality he saw an undercover policeman arresting a youth for a mugging. D confronted the police officer who couldn’t show an ID. There was then a struggle and the police officer was injured. ​

genuine mistake

Question 8

self defense in householder cases

Answer 8

To qualify to be a householder case the force has to be:​

Used whilst in a building or part of a dwelling​

D must be a trespasser​

V must have believed D to be a trespasser

Question 9

duress

Answer 9

Where someone has been forced to commit the crime due to being threatened with death or serious injury​

Law therefore allows a defence

Question 10

duress by threats

Answer 10

This is a common law defence and has been created by judges​

The threat of violence is directed at the D by another person who demands that the D commits a specific crime or else he will be …. (shot etc)​

There has to be:​

• a threat of death or serious injury (rape etc)​
• The threat must be to the D or family member/ someone with a close relationship to the D

Question 11

Martin 1989 –

Answer 11

wife threatened suicide unless D drove whilst disqualified.

Question 12

Graham 1982 Test

Answer 12

Was the D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death (subjective)​

If so, would a sober person of reasonable firmness, sharing the characteristics of the accused have responded in the same way (objective)

Question 13

no safe avenue of escape

Answer 13

Can only work as a defence if there is no avenue of escape​

Question 14

Hudson and Taylor 1971​

​

Answer 14

wo girls lied in court (perjury) as they had been threatened with serious violence. Despite having opportunity to “raise the alarm” the court allowed duress as a defence as they recognised that police protection would not always be effective​

safe avenue of escape

Question 15

Imminence of the Threat

Answer 15

Threat must be effective at the moment the crime is committed but it doesn’t mean that the threat has to be carried out immediately ​

Question 16

Abdul-Hussain 1999

Answer 16

Shiite Muslims – hijacked a plane as they feared being sent back to Iraq where they would be persecuted. On appeal they successfully pleaded duress as the threat was “present” if not “immediate” when they returned to Iraq

imminence of threat

Question 17

reforms of udress by threats

Answer 17

law commision argued that it shpuld be a full defense nstead of partial defense for murder

Question 18

self induced duress

Answer 18

Where the D brought the duress on himself. For instance joining a gang

Where the D is aware that he may be put under duress he cannot use the defence. Particularly in the following circumstances:​

• Where the D joins a criminal gang that is likely to use violence​
• Where the D puts himself in a position where it is likely that he will be subject to threats of violence eg. Being part of a gang, being indebted to a drug dealer

Question 19

Sharp 1987
​

Answer 19

D joined a gang and carried out robberies. D claimed he wanted to leave the gang before the last robbery where a post-master was shot dead. Not allowed to use duress as a defence because he voluntarily joined the gang and took part in other robberies.​

Question 20

Duress of Circumstance

Answer 20

The D was forced to react due to the circumstance they found themselves in, rather than from a direct threat of death or serious injury​

Martin Test​
From an objective point of view, the D acted reasonable and proportionately to avoid a threat of death or serious harm​

The two part Graham test also applies (duress of threats)

Question 21

Willer 1986

Answer 21

Willer and a passenger where in a car when they were surrounded by and threatened by youths. The only way he could get away was drive on the pavement around them. He did this slowly without danger to anyone. He then went to the police to report the incident and the police charged him with reckless driving and he was convicted. CA held that it was duress of circumstance​