Defences: Duress, Necessity & Intoxication Flashcards
Does necessity exist as a defence?
Dudley & Stephens (1884); Per Lord Coleridge, “the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…it may be the plainest and the highest duty to sacrifice [one’s life]. War is full of instances in which it is a man’s due not to live but to die.”
Subsequent developments - a limited development of a defence of necessity
- infant life (Preservation Act 1929 s.1; a doctor may act in good faith to preserve the life of a mother even if the baby dies
- Road traffic regulation Acct 1984 s.87: Emergency vehicles and speed limits
Necessity in case law - medical situations
Re. F (Mental patient sterilisation) (1990); “Upon what principle can medical treatment be justified when given without consent? We are searching for a principle upon which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.” Lord Goff
Necessity in case law - Re. A (Conjoined Twins) [2011] 4 All ER 961
Per War LJ: “the law must allow an escape through choosing the lesser of the two evils”
Necessity a possible defence from criminal damage?
Greenpeace case (2000)
Duress of Circumstances = necessity
Shayler (2001)
Conway (1989)
Martin (1989)
Pommell (1995)
Does it always apply?
Quayle (2005)
Willer (1986)
Circumstances dictate the crime rather than a person
DPP v Lynch (1975)
Dress; a concession to human frailty
Duress; a complete defence except:
Murder - Howe (1987)
Attempted murder - Gotts (1991)
Possibly Treason - Steane (1947)
Self induced duress - Fitzpatrick (1977)
Voluntary exposure to duress - self induced duress
Hassan (1995)
Ali (1995)
Sharp (1987)
Shepherd (1987)
R v Hassan [2005] UKHL 22 per Lord Bingham at para 18:
“Where duress is established, it does not ordinarily operate to negative any legal ingredient of the crime which the defendant has committed. Nor is it now regarded as justifying the conduct of the defendant, as has in the past been suggested… Duress is now properly to be regarded as a defence which, if established, excuses what would otherwise be criminal conduct:”
Leading case on duress by threats
Hassan (2005) HL - Defined in AG v Whelan (1993) – D told to commit an offence & subject to “threats of immediate death, or serious personal violence so great as to overbear the ordinary powers of human resistance”. Duress is a matter for the jury – whether the threat was sufficiently serious to warrant the defence.
Duress - elements: Hassan (2005) HL
Specified crime: Cole
Threat of death or injury: Valderama-vega
Threat of violence to D/another person he has resp for: Matrin (wife), Conway (passenger)
Immediate threat operation on D’s mind at the time: Hudson & Taylor
Graham Test (Approved by HL in Howe)
1) Did d act because he reasonably elieved he had a good cause to fear?
2) Would a sober person of reasonable firmness, sharing D’s characteristics, have responded in the same way?
Threat of death or serious injury
- “pressure” is not duress Dao (2013)
Immediate threat
Abdul Hussain (1999)
Imm threat, did D fail to seek police protection against the threat?
Batchelor (2018)
Graham (1982)
Threat must be so great as to overbear the ordinary powers of human resistance
Characteristic’s to be taken into account
Bowen (1997) - age, sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition
Flatt (1996)
Intoxication - involuntary
Can D form mens rea?
Yes: Guilty (Kingston) - a drunken intent is still intent
No: Not Guilty
Intoxciation - Voluntary
Was it Dutch courage?
Yes: Guilty - AG NI v Gallagher; D formed MR before getting intoxicated
No; Is the offence of basic or specifi intent?
Basic: Guilty - D reckless in becoming intoxicated
Specific; Not Guilty - Majewski
Involuntary intoxication methods
- Prescription durgs
- Unexpected drug reaction
- Laced/spiked food/drink
Voluntary intoxication involves:
D chose to take drugs/drink alcohol
Involuntary intoxication; can D form mens rea?
Yes: Guilty - Kingston
No: Not guilty
Spiked or Laced Drinks - can D form the mens rea?
Kingston (1994) - “drugged intent is still intent”
Hardie (1985)
Unexpected drug reaction - “Dangerous & non-dangerous” drugs
Allen (1988)
Underestimating strength of an intoxicant
Basic intent
Mens rea can be satisfied by recklessness/gross negligence
Includes:
- Manslaughter - lipman
- s.20 malicious wounding/GBH. S.47 ABH, common assault and battery
- Rape
- Criminal damage
Specific intent
Requires proof of actual intention (direct/oblique)
Includes:
- Murder - Lipman
- S.18 GBH/Wounding with intent
- Theft - Majewski
- Burglary & Robbery
- Arson/criminal damager with intent to endanger life
DPP v Majewski (1977)
Voluntary intoxication - key case
Lipman (1970)
Murder = Specific intent
Manslaughter = Basic intent
Statutory defence - genuine, mistaken belief…
…Jaggard v Dickinson (1981)
