Defences - Duress

Question 1

R v Hasan [2005]

Answer 1

R v Hasan [2005] this is split into seven stages:

1) threat of death/serious injury
2) Threat made against D/someone close to him
3) D’s response to the threat must be reasonable
4) The crime committed must be as a direct result of the threat
5) No evasive action possible (e.g. police)
6) Subjected to the threat involuntarily
7) Duress is unavailable for treason, murder, and attempted murder.

Question 2

Rodger and Rose (1998)

Answer 2

-> Threat needs to be extraneous

Prisoner was about to get his jail time prolonged, he escaped, was charged, D tried to rely on that me might commit suicide. Court held that this was only an internal threat.

Question 3

Threat has to be proportional to the crime about to be commited.

Answer 3

Aikens 2003 - Being about to be punched in the face is not enough.

Question 4

R v Quayle 2005

Answer 4

Issue

The appellants appealed on the basis that (1) the cultivation and use of cannabis was permissible in law because they genuinely believed that it was necessary in order to prevent them from suffering severe pain. (2) The legislative and common law schemes in respect of the defence of necessity were inconsistent and therefore, a failure of the common law to recognise the defence of necessity would be in breach of the European Convention on Human Rights 1950. (3) T and L argued that the defence of necessity should have been available to them because of their genuinely held belief that providing cannabis to others was necessary to prevent pain.

Held

It was held that (1) individual consideration of whether medical use of cannabis was necessary went against the legislative regime and therefore, because even doctors were not allowed to prescribe the drug, individuals were not qualified to self-prescribe. Furthermore, juries could not be asked to balance whether an individual’s needs outweighed the purpose of the legislative regime. This would allow juries to legislate.

Question 5

Safi 2005

Answer 5

The threat does not have to exist.

Gun to head - doesn’t matter if it is real or not, when D believed it to be real.

Question 6

Threat against D / someone close to him

Answer 6

Lord Bingham in Hasan (2005)

• Defendant
• Immediate family
• Someone close to him
• Someone to whom he is responsible

Question 7

A reasonable response to the threat

Answer 7

The defense fails if “a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threat”

• Lord Hailsham in Howe (1987)
• Graham 1982

Question 8

A reasonable response to the threat (2)

Characteristics of D - accepted by the courts

Answer 8

Accepted:

• Recognized mental illness/psychiatric condition
  Bowen 1996
• Age
  Ali 1989
• Dependant Helplessness
  Emery 1992

Question 9

A reasonable response to the threat (3)

Characteristics of D - unaccepted by the courts

Answer 9

• Low IQ
  Bowen 1996
• Emotionally unstable
  Hurst 1995

Question 10

Re. A