DURESS and necessity

Question 1

what is duress?

Answer 1

duress is used when an offense is committed due to a response to a threat or circumstance

Question 2

what are the three potential situations duress can arise from?

Answer 2

• duress by threats. d commits an offense due to a threat of serious injury to themselves or another
• duress by circumstance, where threats come from a person or situation that is needed to be escaped from
• necessity- where d finds himself in a situation where they commit a crime to save themselves or another person

Question 3

what case implemented the idea of necessity ?

Answer 3

R V DUDLEY AND STEPHENS- where their only chance of survival was eating the boy.

Question 4

when can necessity not be used?

Answer 4

FOR MURDER, this is similar to duress where the defense cannot be successful for murder or attempted murder

Question 5

what other cases was the defense of necessity used?

Answer 5

• RE A - un conjoining conjoined twins even tho one may not survive - SIGNIFICANT
• f v Berkshire heLTH AUTHORITY

Question 6

what were the 3 conditions that were confirmed in RE A ?

Answer 6

1. the act is needed to avoid inevitable evil
2. no more should be done than is reasonably necessary for the purpose to be achieved
3. evil inflicted must not be disproportionate to the evil avoided

Question 7

what extra principle was added from r v shaylar to RE A

Answer 7

the evil must be directed towards the defendant or someone whom they had responsibility

Question 8

what are some arguments AGAINST necessity of having a general defence

Answer 8

• AN EXCUSE FOR WRONGDOING , it would be an excuse for crime which would have no end to its use
• POLICY ARGUMENTS GIVEN in rv dudley and Stephens as a reason for not allowing defence to a murder charge
• prosecution discretion - the prosecution may be able to use discretion whether to prosicute or not

Question 9

name 3 arguments for having a general defense on necessity

Answer 9

1) allows motive to be explained - by ignoring the motive behind the law it will be too narrow
2) -

Question 10

explain duress by threats.

Answer 10

duress by threats refers to a situation where a defendant is forced or feels compleed to commit a criminal offense because of threats or a circumstance. AND IS ONLY AVAILABLE WHEN it is specifically ordered by the person making the threat, this was not the case in R V Cole

Question 11

explain duress by circumstace

Answer 11

duress by circumstance refers to a threat coming from a circumstance rather than a direct threat mostky seen in driving cases such as
- R V WILLER - d surrounded by threatening youths and had to drive on the pavement to get away

• r v MARTIN - WHERE DS WIFE threatened to commit suicide if he didn’t drive on a disqualified license
• R V POMWELL - no limited to driving , illegal fire arm case

Question 12

name 2 cases that involve driving and duress of circumstance

Answer 12

• R V WILLER

- R V MARTIN

Question 13

what is the difference between duress of circumstance and necessity

Answer 13

one difference is that duress by circumstance or threat is not available for murder wheres necessity could be considered as a defense to murder example RE A conjoined twins case

second - duress must be immediate and in the mind of the defendant at the time where as necessity is not of emergency but a rational choice

Question 14

what are the 6 principles of duress by threats and of circumstance

Answer 14

1- must be a threat of death or serious injury
2- the threat may be made by the defendant or others
3- the threat must be immediate
4) - where the defendant has the opportunity to seek help or inform police , will not be allowed the defense
5) where a defendant voluntary involves themselves in criminal association duress will not be avalibe
6- THE graham test applies - objective test and subjective test

Question 15

explain threat of death or serious injury regarding duress

Answer 15

• threat or serious injury refers to one of the principles there must be for duress to be an available example
• R V HUDSON AND TAYLOR - ds were threatened that they would be cut up if they did not lie highlighting serious injury

However, a threat to damage property is not available for this defence eg LYNCH v DPP

A threat to reveal ds sexual tendencies or financial position is insufficient for the defense eg R V VALADERAMMA-VEGA

Question 16

when is threat by serious injury or death not available for duress

Answer 16

• when it regards threats or damage to property eg LYNCH V DPP
  OR threat to reveal sexual tendencies or financial position eg R V VALDERAMMA - VEGA

Question 17

explain THE THREAT MAY BE MADE TO TEH DEFENDANT OR OTHERS

Answer 17

this is another principle of the availability of duress

• duress is allowed for family members eg R V ORTIZ
• duress is allowed where friends are involved eg WILLER and CONWAY
• R V WRIGHT - not available for boyfriend but on appeal it was available
• R V SHAYLAR - threat made to someone he has responsibility for

Question 18

explain the threat must be immediate in relation to a principle of duress

Answer 18

the threat must be immediate for duress to be available but does not mean the threat needs to be carried out immediately

• R V HUDSOn AND TAYLOR - JUDGE SAID IT WAS NOT AVAILABLE- on appeal was successful committed perjury
• R V HASSAN confirmed meaning - defendant must believe the threat was immediate or almost immediate

Question 19

explain what it is meant by an opportunity to escape or seek police protection

Answer 19

this is another principle that is needed for duress to be available, where d must show evidence that he had no other choice but to
comply with demands eg

R V GILL - not successful because there was time to inform police

R V POMWELL - delay of a few hours was not excessive

Question 20

explain what is it meant by criminal association as a principle of duress availability

Answer 20

this is another principle that means that a defendant that voluntarily puts themselves in a position that is associated with criminals will not be able to use this defense eg

R V HASSAN - should have foreseen consequences of associating with criminals

R V ALI -

Question 21

explain the graham test

Answer 21

the graham test is needed for duress to be available which has two parts the
SUBJECTIVE TEST - was the defendant compelled to act and did he have a fear that if he did not it would result in serious injury or death
OBJECTIVE TEST - would a sober reasonable person sharing the same characteristics of the defendant have responded in the same way to the threats

Question 22

what case established the relevant characteristics for duress

Answer 22

R V BOWEN  established that specific characteristics would be relevant such as 
- AGE 
- PREGNANCY 
- SERIOUS PHYSICAL DISABILITY 
- RECOGNIZED MENTAL ILNESS
GENDER

Question 23

what did the courts hold about R V FRATT

Answer 23

the courts held that self-induced characteristics are not revelent such as self induced addiction

Question 24

give 3 evaluations points on duress

Answer 24

• refusing duress regarding murder can be seen as unfair and harsh for example r v WILSON a 13 year old boy however it can be considered for necessity
• a person is expected to sacrifice their own life rather than take another which is very unrealistic te defence should be avalibe on the basis of what a resonable person would do
• issue with criminal association R V HASSAN reflects courts concern rt’s concerns that the defence of duress was being relied on by defendants who were involved in organised crime and that the scope of the defence needed to be narrowed so that it would succeed less often.
  However, it is possible that the House of Lords went too far in this case. They introduced an objective element in deciding whether a defendant had voluntarily exposed themselves to the risk of threats and this could be considered too harsh.

Question 25

name a potential reform?

Answer 25

2006 the Law Commission recommended in ‘Murder, Manslaughter and Infanticide’ that the defence of duress should be available as a full defence to fatal offence