Duress Flashcards
R v Hasan
in this case the defendant was the driver for an escort. He drove her around to her various appointments and waited for her outside and then drove her home. The prostitute had a boyfriend who was a drug dealer and was known to be very violent. Although facts of what actually happened or the disputed, the essential thing that happened that is relevant to us is that the defendant committed an aggravated burglary by going into the house of someone who may or may not have been a client of the prostitute and taking a large amount of money on their site. He claimed that he only did it because the prostitutes boyfriend, who he knew was violent, said he would kill him if he didn’t.
The case is important for two reasons. Firstly, it went to the House of Lords, which is now the Supreme Court, and they reviewed all of the law on duress to make sure that it was in a satisfactory state. the Supreme Court sometimes does this when they get an issue before them, particularly if it is all to do with case law… They go through everything to make sure that there isn’t anywhere that the law needs to be amended.
Made very clear that duress is not a justification. In many respects it doesn’t matter because to the defendant it doesn’t matter if duress is a justification or an excuse because the end result is the same, he will be acquitted.
The House of Lords in Hasan says 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 defense which, if established, excuses what would otherwise be criminal conduct.
Duress is a little bit more complicated than that because it is a subjective test with an object development, and an objective test with an subjective element.
subjectivity is what with the defendant think. Objectivity is what a reasonable person would think.
The First Question: Was the defendant compelled to act because he reasonably feared that the person making the threat would kill or cause him serious injury?
The Second Question: Would such a person of reasonable firmness sharing the characteristics of the defendant have responded in the same way as the defendant?
AG v Whelan
“The commission of murder is a crime so heinous that murder should not be committed even for the price of life”
R v Howe [1987] AC 417
the House of Lords considered whether a defendant could rely on the defense of duress in relation to murder. It was accepted in that case that the defendant was genuinely under duress where someone threatened to kill him if he didn’t kill someone else. This was a very real threat. the House of Lords would not accept that that entitled him to avoid liability for murder.
R v Gottz
Not a defense to attempted murder.
Mr. and Mrs. Gottz were separated and they had a 16-year-old son. The relationship between the parents was fractious and escalated to the point that the father said to his 16-year-old son what I will kill you if you don’t kill your mother.” The 16-year-old son tried. He was charged with attempted murder. He tried to run the defense of duress and the court said no because it is not a defense to attempted murder.
R v Conway [1988] EWCA Crim 1
Duress defence sufficient to cover a passenger in the car, even if just a friend. There was no blood loyalty here. It was just a case of responsibility because the defendant was driving the car, and it was the passenger who was threatened.
R v Wright [2000] Crim LR 510
The defendant’s boyfriend - the courts clarified that when we say threats to the defendant or their family or someone close to them, this includes their personal relationships.
R v Bowen [1996] 2 Cr App C 157
The defendant’s response to the threats is assessed according to the standards of the sober and reasonable man. This is an objective test as it requires that the defendant meets the standard of resilience of a reasonable person. The courts have introduced a subjective element that dilutes the pure objectivity of the test as it imbues the reasonable man with some of the characteristics of the defendant.
the relevant characteristics of the defendant:
Age
Sex
Pregnancy
serious physical disability
clinically recognized the psychiatric condition
R v Cole [1994] Crim LR 582
The defendant had borrowed money from people who were prone to violence if they weren’t repaid. It was held that this did not raise the defence of duress as the person issuing the threats had not told I’m yo commit an offence to repay the debt.
The courts said no. The specific crime had not been nominated. The defence failed.
The def has a two choices - commit an offence and be harmed. This is the point of duress. There has to be a causal link between the defence and offence committed.
R v Hudson & Taylor
Two teenage girls. They were giving evidence in a criminal trial. They had been warned not to do. As they came to give evidence, the witnesses, realized that associates of person they were giving evidence against were sitting i the public gallery. They were held in contempt of court.
At the time that the def committed the offence, was the threat operating on their mind? If it was, it was an immediate threat.
R v Sharp
The defendant chose to associate with a gang. The gang was known to commit armed robberies. They wanted him to commit a robbery, and when he saw they the other gang members wanted to use guns he tried to get out of it. They turned their guns on him.
He put himself in this situation.
R v Shepherd
If you join a non violent gang, and violence is threatened against you…you will still be able to use duress as a defence.
R v Ali
Has to do with criminals who are known to be violent. All that you need to be placed under duress is one violent person.
R v Dudley & Stevens
Defence of necessity.
Were crew on a ship during a voyage. The ship was ship wrecked and they got into a tiny boat and they were adrift in the ocean far away from land. They thought they were going to die. They had no food or water. They caught some turtles to keep them going. They killed and ate one of the people in the boat. They were then rescued and charged with murder.
Were they subject to british law because they were outside of the british boundary. The custom of the sea - it was accepted by all people that were crew to these ships…someone would get eaten. They ran a defence of necessity. One person died so three could stay alive.
It did explore if the defence of necessity existed in criminal law. We don’t like it as a defence because we don’t want to accept that it is ever necessary.
Necessity is a justification that the unlawfulness of your action is negated by the necessity of your action. The choice between two evils is no choice at all.
In Dudley & Stevens, the issues which troubled the courts is the fact that they chose which person was going to die.
What the court was unhappy about was that they chose which person was going to die.
This wasn’t decided in a standard court.
It gives three questions?
Is there a defence of necessity?
If so, is it a defence to murder?
If so, does it operate when defendant has chosen who will die?
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147
Did not have fully developed organs to support two lives. Their spines were fused. Without an operation to separate them, both children would die.
There was no medical disagreement.
These children would not live unless they were separated. If they were separated, the weaker of the twins would die. Both children had hearts and lungs. But only one abdomen. Only one functioning child could be created.
Why is this of interest in criminal law? The doctors sought a prior ruling from the courts that if they undertook this operation that they wouldn’t be charged with murder. We are accepting that there are two living beings and the operation will kill one immediately.
In relation to one of the twins, we go back to the actus reus of murder? Yes. Were there competing causes? Maybe. Her condition would have killed her later. But the doctor would have the actus reus of murder immediately. Does the doctor have the mens rea? Yes, under oblique intention.
You can see why he sought a prior ruling from the courts? The CA were in a difficult situation. Time was short and public attention was on them. They had to make a decision. Clearly the decision they wanted to make was that the operation should go ahead. The CA had to find a way for it not to be murder.
Justice Brooke set out the principles for necessity to exist. The act is needed to avoid inevitable and irreparable evil. It is not more than is reasonably necessary for the purpose to be achieved. The evil inflicted is not disproportionate to the evil avoided.
It looks then that we do know that necessity is a defence, and it is a defence to murder. But, and there are two buts. First, this is a family law case and it has no precedence in criminal law. Secondly, the CA itself said that this case should never be used as a precedence. They were saying they did what they needed to do to let the doctors do what they needed to do. Oddly, the court can’t necessarily say this. It shows that it as a matter of policy, the court appreciated that what they were doing …
