Duress Flashcards
What is defence based on?
A been threatened to force him to commit crime
EC drawn distinction by threats / circumstances
Not yet judicially recognised in IC, legislative recognition in S18(3) NFOP
What does duress involve?
Threat of death / violence
DBT: specific instruction to commit crime
DBC: no instruction, crime commited because only way of escape is to do act
DPP V Lynch 1975: if defence successful full acquittal
AG v Whelan 1934: obligation to avail of chance to reassert will
Duress by threats: immediate violence?
R v Hudson & Taylor 1971: closer the threat, more it influences crimes commission. (Perjury)
Duress by threats: proximity of relationship?
Defence only applies if closely connected to accused: R v Conway 1989/ R v Wright 2000
Test objective & subjective: would RM succumb to threat & if specific individual acted reasonably
R v Howe 1987: person of reasonable firmness sharing accused characteristics
Duress by threats: Voluntary?
Defense fails if A voluntarily placed in situation
R v Fitzpatrick ( IRA)
R v Hasan 2005 ( if accused anticipated being asked to commit crime)
DPP v Gleason: emphasised combined test.
Threats by circumstances: LRC?
Consultation paper recommended claim of duress be judged objectively
Seriousness should be based on RM with accused characteristics
Failing to seek protection does not void defence
Defence not available to self induced duress
Duress by Circimstances?
R v Dudley & Stephens 1884: killing murder unless justified by recognized legal excuse. This case doesn’t meet legal definition of necessity. Separating law & morality would be disastrous
Allowing murder would set dangerous precedent, risking harm to weakest
Circumstances Test?
R v loughnan 1981:
Act must be to avoid certain irreparable evil
A must believe they were in imminent peril
Response must not be disproportionate to peril
R v Pommel 1995 (gun)
Doctrine of necessity?
Re A (children) 2000
R v Dudley doesn’t apply
Need not be restricted to emergencies
Permitting sacraficial separation doesn’t pose risk of widespread misuse
Test for Doctrine of Necessity
Sir James Stephens: Act needed to avoid inevitable / irreparable evil
No more done than reasonably necessary for purpose to be achieved evil inflicted must not be disproportionate to evil avoided
Limits to Necessity?
Quite strict
Economic duress will not suffice: policy
Southwark v William 1971: If homelessness were allowed would result in no persons home being safe, necessity cannot become mask for anarchy
LRC Necessity?
Recommends defence continue on traditional basis while recognising may be good reason to treat as justification
Should also apply to cases where duress not available & accused chooses criminal activity due to facing constrained choice
