Defences (Duress & Necessity) Flashcards
What are the two forms of Duress?
Duress by Threats
Duress of circumstances
What does the D need for Duress?
Actus Reus and Men’s Rea
Attorney General V Whelan 1934
What did this case outline duress as?
“Threats of immediate death or serious personal violence so great as to overhear the ordinary powers of human resistance should be accepted as justification for acts which would otherwise be criminal”
Duress By Threats
What are the key elements that outlines Duress by Threats?
Hint:
(Lord Bingham)
(R V Hassan)
threat of death or serious injury
To D or someone close to him
D’s belief in the threat and response to it must be reasonable
D’s crimes must have been directly caused by the threat
There was no evasive action D could reasonably take
Not if self-Induced
No defence to murder, attempted murder or treason
1) Threat of death or serious Injury
R V Aikens
Not a threat to punch the D
DPP V Lynch
Not towards property
2) To D or someone close to him
R V Hasan 2005
Lord Bingham:
The threat must be “Directed against the defendant or his immediate family or someone close to him or for whom he is responsible for”
2) To D or someone close to him
Lord Bingham:
The threat must be “Directed against the defendant or his immediate family or someone close to him or for whom he is responsible for”
R V Hurley and Murray (1967)
Threats to kill or seriously injure D’s girlfriend amounted to duress
R V Shayler (2001):
D can be responsible towards another person even if there is no previous connection with them
For example:
D is told to commit a crime or a bomb will be set off, harming others
3) D’s belief in the threat and response to it must be reasonable
The objective test set out in R V Graham; approved in R V Hassan
Did the D Reasonably believe In the circumstances of the threat?
Was the D’s belief a good cause for his fear?
Was his response one that might have been expected of a Sober person of reasonable firmness?
3) D’s belief in the threat and response to it must be reasonable
R V Graham 1982 legal principle?
A person under duress must show:
“The steadfastness reasonably to be expected of the ordinary citizen in his situation”
(4) D’s crime must have been directly caused by the threat
R V Cole
D was in debt to two money leaders who had threatened him and hit him with a baseball bat as he owed them £3,500
D Robbed two building societies to get the money
Held:
D could not rely on duress as the threat was not made specifically to get D to commit the robberies
(4) D’s crime must have been directly caused by the threat
R V Valderrama-Vega (1985)
D was under financial pressure and had been threatened with being “outed” as gay.
He had also been threatened with death and serious injury.
Held:
The threat of death or serious injury need not be the only cause of D’s conduct, as long as the jury are satisfied he would not have acted “but for” those threats
(4) D’s crime must have been directly caused by the threat
Summarised
The D would not commit the crime “But for” D’s threats
The threat was made in order to make the defendant commit a particular crime
R V Cole
R V Valderrama-vega
5) There was no evasive action D Could reasonably take
The threat must still be effective at the time of the offence
R V Hurst 1994
“The accused must know or believe that the threat is one which will be carried out immediately or before the accused or other person threatened can obtain official protection”
5) There was no evasive action D Could reasonably take
R V Abdul-Hussain (1999)
Six Iraqis had fled from Saddam Hussein’s regime to the Sudan.
They were terrified of being returned to Iraq to face torture and punishment.
They boarded a plan to Jordan and hijacked it when over Egyptian airspace using fake grenades, forcing the pilot to fly to London
Held:
The judge should have left duress to the jury;
Duress did not require a “Virtually spontaneous” reaction if the threat was “imminent”.
5) There was no evasive action D Could reasonably take
R V Hasan 2005
D had committed burglary.
He claimed another man would harm him and his family If he did not do it.
Lord Bingham:
“The threat must be an immediate one that D Cannot avoid.
Immediacy is the “Cardinal feature” of the defence”
5) There was no evasive action D Could reasonably take
R V Hasan 2005
Lord Bingham:
“The threat must be an immediate one that D Cannot avoid.
Immediacy is the “Cardinal feature” of the defence
What does this mean?
If there was a delay of a day between the threat with being shot and a crime, this is not duress
Furthermore Lord Bingham stated:
‘D’s belief as to the immediacy of the threat must be reasonable”
5) There was no evasive action D Could reasonably take
R v Hudson 2005
Two girls were prosecution witnesses.
They gave false evidence and were charged with perjury.
They claimed duress as a gang had threatened them with serious injury if they told the truth.
A gang member was in the public gallery when they gave evidence.
Held:
Duress was allowed even though the girls could have put themselves under the Courts protection
This was because the protection of the police would not have been effective
The threat was no less effective when it could be carried out the same night, even if not “immediate”
5) There was no evasive action D Could reasonably take
(Summarised)
Effect must be immediate, can be so if reporting to the police would make no difference
R V Hasan
R V Hudson
6) Not if self-induced
R V Sharp (1987)
D cannot rely on threats which he has voluntarily laid himself open to
D was part of a conspiracy to rob.
When he saw his co-conspirators armed with guns, he said he wanted out of the plan
One of the co-conspirator threatened to kill him if he did not go ahead
During the robber the same person killed the V, and D was charged with manslaughter
Held:
D could not rely on duress as he had brought the situation on himself, and his conviction was upheld
6) Not if self-induced
R V Ali 2008
If D ought reasonably to have know that joining the gang might subject him to threats of violence, he cannot rely on duress as a defence
6) Not if self-induced
R v Shepard (1987)
D joined a gang of shoplifters but wanted to give up after his first time.
He raised the issue of duress when charged with a subsequent burglary with the gang.
Held:
If the gang D joins is not overtly violent, the defence of duress should be left to the jury to consider
6) Not if self-induced
Summarised
Duress self-induced, D cannot use it as a defence
R V Sharp
R V Ali
May not be the case if the “gang is not overly violent” (R V Shepherd)
7) No defence to murder, Attempted murder or treason
Abbott V R
Duress of circumstances
Occurs when:
“The situation forces D to commit a crime”
R V Willer 1996
D drove his car slowly on a pavement to escape from a gang of youths who were set on attacking him and his passengers
D was charged with reckless driving and convicted after the trail judge refused to leave duress to the jury
Held:
This issue of duress should have been left to the jury
Duress of circumstances
Occurs when:
“The situation forces D to commit a crime”
(R V Conway 1989)
D’s passengers had been targeted the previous week.
Another person was shot during the incident
Two men came running towards the defendant’s car.
the passenger shouted “drive off!” hysterically
D, fearing for his passengers life drove off recklessly, pursued by the other two men, who were actually plain clothes police, in the car
Held:
D’s convictions for reckless driving were quashed.
Duress should have been left to the jury
Duress of circumstances Occurs when:
“The situation forces D to commit a crime”
(R V Quayle 2005)
Could duress of circumstances be claimed by growers if cannabis where there genuinely needed it to relieve pain from a Pre-existing medical condition?
Held:
There must be imminent danger of physical injury in order to claim duress of circumstances. Merely avoiding the pain was not enough
Duress of circumstances Occurs when:
“The situation forces D to commit a crime”
(R V Pommell 1995)
D was found in bed with a gun. He claimed duress of circumstances as he had taken the gun from a man who was threatening to use it.
Held: This was duress of circumstances as the situation forced him to be in possession of a weapon
Duress of circumstances is governed by the same principles as duress by threats
“same principles as duress by threats”
what does this actually mean?
That duress by circumstances uses the exact processes as duress by threats
Duress of Circumstances
The situation forces D to commit a crime (Summary)
The situation forces the D to commit a crime and there must be an imminent danger of physical injury and the same stages as duress by threats apply
Duress
Burden Of Proof and Outcome
If D provides evidence of Duress, the Prosecution must disprove it.
Either type of Duress established, the Defendant will be acquitted
What is meant by Necessity?
D has no choice but to commit the crime
To achieve the lesser of two evils
What is the difference between Necessity and Duress?
Necessity doesn’t require the Defendant to be threatened to perform the crime
Necessity
What did Lord Golf state in the case law off R V Bournewood NHS Trust 1998 about Necessity?
Lord Golf:
“The defence of necessity was relevant where a mentally ill person was detained despite the lack of a legal basis to do so”
Necessity
Mouse’s Case (1608)
Necessity allowed a prisoner to leave a burning gaol (Jail) even though this was forbidden by Statute
Necessity
Re A (2000)
The medical evidence was that if conjoined twins were left together, both would die; if separated, one would live but the consequence would be the death of the other. The hospital treating the twins went to court for a declaration that it was lawful to operate in order to separate them.
Held: The operation would be lawful due to Necessity, it was a matter of a choosing the lesser of two evils, and so Necessity applied.
Necessity
Re A (2000)
The court stated Necessity will only succeed where:
The act was necessary to avoid an inevitable evil; and
The evil inflicted was not disproportionate to the evil avoided
Necessity Summary
D has no choice but to commit the crime to achieve the lesser of the two evils
Re A
Where act necessary to avoid inevitable evil, and evil inflicted is not disproportionate to the evil avoided
Necessity is available for murder
Necessity Outcome
If established, Necessity results in full acquittal
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