Defences of Justification Flashcards
Duress
deals with cases in whichh D’s behaviour fulfills the conduct element and the positive fault requirements of an offence, but in which D acted in rsponse to threats from another person (duress per minas) or inorder to ave dire consequences- duress of circumstnace.
Preliminary points
- restrictive approach in law
- Burden of proof on prosecutors
- CA developed d of c around 1980’s
- not avalable as defence for murder,attempted murder or treason- Howe
Duress by threats:
2 part test set out
- > (Lynch) was D or may he have been compelled to act as he did out of fear of death or serious injury. fear caused by what he reasonably believed K had said or done.
- > (Graham)the threats must be such that ‘a sober person of reasonable firmness’ would not have resisted them.
Serious
Graham [1982]
lived w/ wife and homeosexual lover K. K put electric cable round wife’s neck and told Graham to pull.Graham argued his compliance w/ K’s instruction out of fear
Valderrama- Vega [1985]
Threat of death or serious physical injury. D committed an offence following the exert of 3 types of pressure on him (Financial) pressures, threats to reveal the fact that he was homosexual, threats of death or serious injury). CA: if the threats of death or serious injury were substantial then the defence of duress would be available. Not in regard too financial pressure or reputation.
Reasonable Bravery
Howe and another [1987]
Confirmed Graham. H involved in attacks on men that caused their death. They claimed they did so out of fear of the a man who was long crim record and understood that he would kill them if not. Lord Hailsham: wrong to suggest “.. that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.”
-> The more exteme the crime demanded , the higher the level of resistance should be.
Characteristics required in determining reasonable bravery
Bowen [1997]- Told his family would be petrol bombed if he didnt’t help K. B had low IQ(very gullible held: low intelligence not relevant in determining bravery. Sex & age are, Also pregnancy, physical disability or certain recognised psychiatric conditions like PTSD. Concer D’s firmnesss of character and ability to resist, also their perceptionof the threat to them.
Shayler [2001]
Threat need not be addresed to D personally ‘threat towards somebody for whom he reasonably regarded himself as being responsible’
Hassan [2005]-
Point on the threat being present
&
Threats of duress of circumstancecs subject to dctrine of prior fault.
Duty to take evasive action particularly where the threat ‘is not such that D reasonably expects to follow immediately or almost immediately on his failure to comply with the threat.’
Lord Bingham held: should be objective test , based on the foreseeability of violence being threatened by people with whom D was associating and not requiring foresight of coercion to commit crimes of a particular kind.
Graham [1982]
The test is OBJECTIVE. Not based on facts as D believed them to be.
test: whether, as a result of what D REASONABLY believed the duressor had said or done.
Sharp (1987)
Threats of duress of circumstancecs subject to dctrine of prior fault.
Subjective test
D joined gang of robbers and when he threatened to withdraw he was threatned w/ violence. CA: Duress unavailable to anyone who voluntary joins a gang ‘which he knows might bring pressure on him to commit an offence and was an active member when he was put under such pressure.
supported by Lady hales in Hasan
Duress after Hassan
- Modern statement of law on duress
- objective approach for policy reasons
- High standard of bravery expected
- Should more allowance for individual characters be made?
Duress of Circumstance
duress jury q
Willer [1986] Charged w/ reckless driving. Argued he did so to escape gang, he felt would attack. Defence should hae been left to the jury but it was not.so conviction unsafe.
Martin [1989]
Defendant drove his vehicle while disqualified to take son to work. He did so because his wife threatened suicide if he didnt.
held: “Defence can arise from other objective dangers threatning the accused or others.” “still must be threat of death or serious injury”- confirmed in Hasan
Quayle (Barry [2005]
Possesed cannabis and argued he was using it to prevent pain. He argued it was internal duress-For policy reasosn courts did not allow the argument so circumstances do not include internal pressures.
Duress of circumstances distinguished from duress by threats
- Both defences require some external danger to D
- In duress per minas- typically a threat intended by the threatner to coerce d in commiting particular offence
- in circumstances, D responds to the threat by an offence of D’s choosing.
Impact of threat
Vvalderrama Vega- Immaterial if threat of violence is not sole cause for commision of offence, but it must be one. Also it must influence D, if D would have done it anyways the defence is not available.
Distinguish Duress of C from necessity
Pommel found w/ firearm, argued duress by circumstance as he had took it of x who was going to shoot some geezer.
Duress:threat danger to life
- > Necessity balancing of evils
- > Duress is an excuse, necessity a justification
- > Duress considers D’s charteristics.
- > Duress limited defence, necessity applesto all crimes but is eceptional in common law
