Defence - Duress and Necessity Flashcards
What is Duress?
a situation where the defendant is put under considerable pressure to commit a crime or face death or serious injury to himself or another for whom he feels responsible
What is the burden of proof of duress?
The burden of proof is on the prosecution to prove the D was NOT under duress
What two crimes is duress not available for?
Murder (R vs Howe)
Attempted Murder (R v Gotts)
What are the two (usual) situations of duress
Duress by threats - direct third party threat (rob that person or ill kill you)
Duress of Circumstance - crime to escape threat in their circumstance (dangerous driving to escape attacker)
What is the two stage test used in Duress of threats? What case established this?
Graham Test (R vs Graham 1982)
1) (subjective) Was the D influenced to act in the belief that themselves or others would be killed or injured if they did not comply?
2) (objective) Would a sober person of reasonable firmness who shared the same characteristics of the D acted in the same way
(subjective test) In what 3 circumstances is there no defence for duress with case example
1) If they determine it is self-induced aka the D has voluntarily associated with criminals
2) If it deems the situation was in some way avoidable, e.g the D could have escaped or reported to the police - must be unavoidable and imminent
R vs Hasan for both
3) Circumstances are not sufficiently serious
R vs Graham
(objective) when can personal characteristics be considered?
If they are relevant to how the D interpreted the threat
(R vs Bowen) which established ONLY age and sex should be considered.
What is necessary for duress of circumstance?
Situation where death or personal injury will ensue if a crime is not commited. - This mostly regards road traffic accidents.
What test is used for Duress of Circumstance
The Grahan test is also used in Duress of Circumstance!
What case first recognised Duress of Circumstance?
R vs Wukker (1986)
Drove on pavement (reckless driving) to escape gang attack
What Case did Duress of Circumstance apply to a scenario without driving?
R v Pommell
- possession of firearm but did not hand it into police at first opportunity so no defence
What is Necessity? And name a case it was raised in
Necessity is where defendant is placed in a position where they must commit a crime to prevent a greater evil from happening.
Extremely rare and limited defence (rarely if ever accepted)
Dudley and Stephens (1884) - (boat case) courts denied the defence.
In necessity - what case established that the evil must be directed towards the D who someone they had responsibility over
R vs Shayler
claimed he disclosed government secrets to protect public
What are some things about duress that could be considered problems / unfair?
1) Not available for murder / attempted murder which could be considered unfair in some circumstances.
2) R vs Hasan narrowed circumstances which duress can be used which may mean it is not available to individuals who need it.
3) A D’s low IQ is not considered by the court following Bowen (1996)
