criminal defences: duress and necessity

Question 1

what is the defence of duress

Answer 1

a defence valid when the defendant is put under considerable pressure to commit a crime or face death or serious injury to themselves or another for whom they feel responsible the problem is that the defendant commits the AR with the MR so the defence takes the circumstances into account.

Question 2

what is duress by threats

Answer 2

this consists of direct threats to the defendant to commit a crime or face death or serious personal injury to themselves or another

Question 3

what is duress by circumstances

Answer 3

this consists of external circumstances that the defendant believes constitutes a serious threat

Question 4

which two cases confirm that duress isn’t available as a defence to murder or attempted murder

Answer 4

R v Howe- can’t use DBT for murder

R v Gotts- in attempted murder DBT can’t stand

Question 5

if the defence is raised successfully who’s responsibility is it to disprove the defence

Answer 5

the prosecution

Question 6

what does the case A-G v Whelan tells us about the duress of threats

Answer 6

“threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as justification for acts which would otherwise be criminal”.

Question 7

what does the case Shayler (2001) say about duress by threats

Answer 7

Must be a threat of death or serious injury

Question 8

explain the case of R v Valderrama-Vega 1985

Answer 8

F:D illegally imported cocaine and claimed this was due to a gang threatening to disclose his sexuality and he needed the money due to financial pressures. D was also threatened with death.
H:CA quashed conviction as jury was entitled to look at the cumulative effects of all the threats. If there were not a threat of death then the other threats would not be enough

Question 9

what did the case of DPP v Lynch say about the duress by threats

Answer 9

duress by threat cannot be used for threats on property

Question 10

what does the case Hasan say about duress by threats

Answer 10

The threat must be directed against D or his immediate family or someone close to him for whom he is responsible

Question 11

who else can be included in duress by threats following the case of Hurley v Hurley and Shayler

Answer 11

Hurley v Hurley= a girlfriend is sufficient

Shayler= even if not previously connected e.g. threat that a bomb would go off harming others

Question 12

what case supports D’s belief in the threat and response was reasonable

Answer 12

graham

Question 13

explain the case of graham

Answer 13

F:D was a homosexual man who lived with his wife and another man, K. K was violent. K put flex around D’s wife’s neck and told D to pull the other end. His wife died. His conviction was upheld.
H: “the steadfastness reasonably to be expected of the ordinary citizen in his situation”

Question 14

what tests have been raised from the case of Graham (1 objective 1 subjective)

Answer 14

1. Did D reasonably believe in the circumstances of the threat? And was D’s belief good cause for his fear? (subjective)
2. Was his response one that might have been expected of a sober and reasonable person? (objective)

Question 15

what is the subjective test for duress by threat

Answer 15

Was D compelled to act as they did because they reasonably believed they had good cause to fear serious injury or death

Question 16

explain the case of martin

Answer 16

F: D claimed he had been forced to carry out 2 robberies by 2 men who lived on the same estate. He suffer from a disorder which meant he regarded things said to him as threats.
H: CA allowed his appeal stating that D’s mental state is relevant in deciding whether he reasonably believed that his (or his family’s safety was at risk)

Question 17

what is the objective test in duress by threats

Answer 17

Would the reasonable man have behaved in the same way?

Which characteristics can be taken into account?

Question 18

explain the case of R v Bowen

Answer 18

F: D was low IQ and obtained goods by deception because they threatened to petrol-bomb his family.
H: The relevant characteristics must relate to the ability to resist pressure and threats.

Question 19

what relevant characteristics are stated in Bowen (duress by threats)

Answer 19

Following can be relevant:

i) age
ii) pregnancy
iii) serious physical disability
iv) recognised mental illness
v) gender

Question 20

what case supports ‘actions caused by the threats’ and explain it

Answer 20

R v Cole
F:Owed money to a loan shark and was beaten with a baseball bat. D then robbed two building societies to get the money.
H:Could not rely on duress because the threat was not made specifically to get D to commit the robberies.

Therefore D can only use the defence if the threats are in order to make him or her commit a specific offence.

Question 21

what case supports ‘no safe avenue of escape’ and explain it

Answer 21

R v Hasan
F: D associated with a violent drug dealer who threatened his family if he did not burgle a house. He was arrested in the house armed with a knife.
HL reinstated his conviction.
H: Lord Bingham : the threat must be an immediate one that D cannot avoid “cardinal feature of the defence”

(This throws doubt on the earlier Hudson and Taylor decision: it is doubtful D can rely the defence if there was an opportunity to go to the police. The defendant’s in this case were 17 and 19 which may affect the outcome.)

Question 22

what case supports imminence and explain the ratio

Answer 22

H: There must be immediate peril of death or serious injury to D, or to those for whom he or she has responsibility
The peril must operate on D’s mind at the time of committing the otherwise criminal act, so as to overbear his/her will, this is a matter for the jury.
Execution of the threat need not be immediately in prospect

Question 23

what do the cases of sharp and Shepard say about the threat not being self-induced

Answer 23

If the gang D associates with is overtly violent the D ought reasonably have known he would be subject to threats (Sharp)
If the gang is not overtly violent then it is left up to the jury (Shepherd)

Question 24

in which case was duress by circumstance first recognised by the courts and what happened in this case

Answer 24

R v Willer
F: convicted of reckless driving
H: Court of Appeal agreed the jury should have been allowed to consider whether he drove under compulsion i.e duress

Question 25

explain the case of R v Conway

Answer 25

F:A passenger in D’s car had been shot by 2 men 2 weeks earlier. The car was stationary when the passenger saw 2 men running to the car (were in fact plain-clothes policemen) and yelled at D to drive off.
H: CA quashed conviction and ruled that the defence is available if objectively D was acting in order to avoid a threat of death or serious injury.

Question 26

what was held in the case of Cairns

Answer 26

It is sufficient for D to show that they acted as they did because they reasonably perceived a threat of serious physical injury or death. They are not required to prove that the threat was an actual/real threat

Question 27

explain the case of R v Pommell

Answer 27

F: D was found by police to be in the possession of a weapon. He said he had taken it from another person in order prevent them using it.
H:Confirmed that duress by circumstance follows the same rules as duress by threats

Question 28

what are the key elements of duress of circumstances

Answer 28

1. the situation forces D to commit a crime (must be imminent danger of physical injury- R v Quayle)
2. To D or someone close to him (immediate family someone D reasonably regards self as responsible to- R v Hasan, R v Shayler)
3. D’s belief in the threat and response to it must be reasonable (R v Graham, R v Hasan)
4. D’s crime must have been directly caused by the threat (crime not committed “but for” D’s threat- R v Cole, R v Valderrama-Vega)
5. there was no evasive action D could reasonably take (effect must be immediate can be so if reporting would make no difference -R v Hasan, R v Hudson
6. not if self-induced (R v Sharp, R v Ali-unless gang not “overly violent”- R v Shepherd)
7. No defence to murder, attempted murder or treason(Abbott v R)

Question 29

what are the key elements of duress by threats

Answer 29

1. threat of death or serious injury(R v Aikens-not threat to punch D)(DPP v Lynch-not to property)
2. To D or someone close to him (immediate family someone D reasonably regards self as responsible to R v Hasan, R v Shayler)
3. D’s belief in the threat and response to it must be reasonable (R v Graham, R v Hasan)
4. D’s crime must have been directly caused by the threat (crime not committed “but for” D ‘s threat- R v Cole, R v Valderrama-vega)
5. there was no evasive action D could reasonably take(effect must be immediate can be so if reporting would make no difference-R v Hasan, R v Hudson)
6. not if self-induced(R v Sharp, R v Ali-unless gang not “overly violent”- R v Shepherd)
7. no defence to murder, attempted murder or treason- Abbott v R

Question 30

explain the case of R v Dudley v Stephens 1884

Answer 30

F: The two defendants and a boy between the ages of seventeen and eighteen were cast away in an open boat at sea following a storm. The boat drifted in the ocean and was considered to be more than one thousand miles from land. After seven days without food and five without water, S suggested that lots should be drawn with the loser being put to death to provide food for the remaining two. Subsequently however, D and S colluded to the extent that the boy should be killed so that they could survive. On the twentieth day, with the agreement of S, D killed the boy and both the defendants ate him for the following four days until rescue. It was argued that the defendants believed that in the circumstances they would die unless the boy was killed.
H: The defence of necessity was not available as a defence to murder on these facts. It is not possible to justify the killing of one individual in order to save the life of another on the basis that the killing is necessary to do so.

Question 31

what are the rules from the criminal law digest 1883 addressed in the case R v A (conjoined twins 2000)

Answer 31

1. The act was done only in order to avoid consequences which could otherwise be avoided
2. Those consequences, if they had happened, would have inflicted inevitable and irreparable evil
3. No more was done than was necessary for that purpose
4. the evil inflicted by it was not disproportionate

Question 32

explain the case of R v F

Answer 32

F: A girl with a severe mental difficulty had formed a sexual relationship and there was risk she would become pregnant.
The health authority sought a declaration for sterilisation.
H:House of Lords said it would lawful under necessity and be a duty for drs. to do so.