Duress

Question 1

Issue with the defence of necessity?

Answer 1

• Criticised as the leading case for this defence is covered in civil law.
• Some say that it is such a similar defence to duress that it is not needed and should just be abolished, there have also currently been no successful cases.
• Lord Woolfe described necessity and duress as ‘different words for the same thing.’ Only major difference being that necessity appears to be a defence for murder (RE A)

Question 2

Issue with defence of duress?

Answer 2

• The courts have been seen to want to restrict the use of this defence as in R V Hasan so that only those who really deserve it are able to use it. Cannot be used if you associate yourself with criminals.
  However some fear this may be harmful to victims of domestic violence who are forced to do things by violent partners.
• Because of this the defence for self-induced duress should be subjective to whether they foresaw a risk of being forced into crime.

Question 3

Not being available for murder:

Answer 3

• The fact is not available for attempted murder / murder has been criticised and law commission suggests that it should be a defence for all crimes.

Question 4

Objective nature of Graham test:

Answer 4

• This part of the test is very restrictive as shown in RV Bowen they are not willing to consider many special characteristics of the defendant.
• It has limited mental problems to psychiatric illnesses only.

Question 5

Suggested reform:

Answer 5

• That the defence should be a available for all crimes.
• That the defence of necessity be abolished and become part of duress.
• That the entire defence should be abolished and instead duress should be taken into account as part of any mitigating factors of D.