Duress and Necessity

Question 1

What is duress?

Answer 1

When the D is faced with a choice of 2 evils, they either have to commit a crime or incur even more unpleasant conseqeunces

Question 2

What are the 2 types of duress?

Answer 2

Duress by threats, duress by circumstances

Question 3

What is duress by threats?

Answer 3

Where D is forced to commit a crime due to threats by a person or circumstances, he shows he committed the actus reus but says mens rea was formed because he had no effective choice

Question 4

What must the threat of duress be?

Answer 4

Threat of death or serious injury, nothing else will sufice. However, this is not needed in necessity defence

Question 5

What is the defence recognised as?

Answer 5

“a concession to human frailty” R V HOWE 1989

Question 6

What does a successful plea of duress lead too?

Answer 6

An acquittal

Question 7

When is duress by threats only available?

Answer 7

When the D commits the offence that was ordered by the threat. In R v Cole 1994 D robbed building societies to repay debt as his family was being threatened, defence denied as he was not told to rob anywhere

Question 8

What were the early cases of duress of circumstances and give 3 examples?…

Answer 8

Driving cases, this has been recognised by the courts since the 1980’s…
R v Willer 1986 - surrounded by threatening youths in car, drove on pavement to escape, defence allowed
R v Conway 1988 - Drove car at high speed to escape when he thought 2 men were going to attack his passenger
R v Martin 1989 - D was disqualified from driving but wife threatened to commit suicide if he didnt drive her son to work, defence allowed

Question 9

Which case stated duress of circumstances is not limited to driving offences?

Answer 9

R v Pommell 1995 - removed gun from man who visited him in the night saying he was going to kill someone, fell asleep with it and police raided house, said he was going to hand it in to police in the morning, defence allowed

Question 10

What can duress not be a defence too?

Answer 10

Murder or attempted murder, however in Re A 2000 necessity may be allowed as a defence to murder

Question 11

What is the principle that’s different between duress and necessity?

Answer 11

Duress - threat must be imminent
Necessity - matter of ‘necessity not emergency’
Also in duress focus on the D’s condition (Graham test) but in necessity focuses on balancing evils

Question 12

What case was duress originally allowed for murder?

Answer 12

Lynch v DPP for Northern Ireland 1975 “the greater the crime the greater the degree of pressure must be” - but later principle was overruled in Howe 1987

Question 13

What cases seems quite harsh that the defence of duress is not allowed for murder or attempted murder?

Answer 13

R v Wilson 2007 - D was 13 and forced by father to murder their neighbout using several weapons, threatened with violence otherwise, defence failed
R v Gotts 1992 - 16 year old D threatened with violence by father unless he killed his mother, stabbed her and convicted of attempted murder

Question 14

How many principles are there for the defence of duress?

Answer 14

6

Question 15

What is the first principle on the defence of duress?

Answer 15

Must be a threat of death or serious injury - R v Hasan 2005 confirmed threat must be very serious
Threat to damage or destroy property is insufficient - Lynch v DPP “the law must draw a line somewhere and the law draws it between treats to property and threats to the person”
Threats to reveal D’s sexual tendencies or financial position are insufficient - R v Valderamma-Vega 1985 received threats of death, exposure of homosexuality and unrevealed debts, the last 2 alone would mean defence would fail but also had a death threat so didnt

Question 16

What is the second principle on the defence of duress?

Answer 16

Threat must be made to the defendant or to others
R v Ortiz 1986 - threats to family allowed defence
R v Willer 1986 and R v Conway 1988 - to friends
R v Wright 2000 - to boyfriend, first denied as boyfriend was not ‘sufficiently proximate’ but later allowed on appeal
R v Shayler 2001 - threats allowed to complete strangers ‘to some other person or persons for whom he has responsibility or persons for whom the situation makes him responsible’

Question 17

What is the third principle on the defence of duress?

Answer 17

Threat must be immediate
R v Hudson and Taylor 1971 - if they did not lie in court they would be cut up after, COA said threat was hanging over them at time of offence and this is enough
R v Hasan 2005 - D must believe threat is immediate or almost immediate

Question 18

What is the fourth principle on the defence of duress?

Answer 18

Where the D has an opportunity to seek police protection the defence will be denied
D is expected to take any reasonable opportunity yo avoid committing the crime - R v Gill 1963, wife threatened with violence if he did not steal a lorry, defence denied as he could have had time to inform police
R v Pommell 1995 - delay of a few hours was not excessive and D also offered acceptable explanation for the delay in handing in the firearm to police
R v Hudson and Taylor 1971 - courts realised police may not always be able to provide effective protection

Question 19

What is the fifth principle in the defence of duress?

Answer 19

Where D voluntarily engages in criminal association the defence will be denied
R v Fitzpatrick 1977 - no defence as voluntarily joined RIA
R v Shepherd 1987 - gang of teenage shoplifters, tried to give up but family threatened, defence allowed but COA allowed appeal as they considered whether this D would have expected this level of violence when joining, answer was no so appeal allowed
R v Hasan 2005 - prostitutes driver threatened by violent boyfriend to carry out a burgulary
R v Ali 2008 - forced salesman out car at knifepoint as friend threatened him with violence if he didn’t rob the car, defence denied as ‘voluntarily been friends with violent man for many years’

Question 20

What is the sixth principle in the defence of duress?

Answer 20

The test for duress; The Graham Test
R v Graham 1982 - love triangle with homosexual partner and wife, lover was jealous tied wire around wifes neck and got D to pull other end, she died, convicted of murder, he argued he was scared of lover, defence failed due to 2nd part of the test;
1 - subjective test, concentrates on D’s beliefs, what did D reasonably believe and did he have good cause to fear that if he did not act as he did it would result in death or serious injury to him or another?
R v Safi and Others 2004 - belief must be reasonable
2 - objective test, would a sober person of reasonable firmness sharing the same characteristics as the D have responded in the same way to the threats?
R v Bowen 1996 (68 year old man with low IQ forced to carry out 5 counts of obtaining property by deception, held Iq was not to be a relevant characteristic as not part of ability to resist pressure and threats) - these could be some characteristics to consider; age, pregnancy, serious physical disability, mental illness

Question 21

What characteristics will not be relevant in the Graham test?

Answer 21

Self-induced ones - such as drugs, alcohol and glue-sniffing

R v Flatt 1996 - addicted to cocaine and in debt to supplier, threatened by supplier, defence denied

Question 22

What is the main limitation on the defence of duress?

Answer 22

It is not realistic - refusing duress to a murder charge is very harsh (R v Wilson 2007), should we realistically expect someone to sacrifice their own life rather than take another? Unrealistic to expect such a degree of heroism

Question 23

What is harsh about the objective elements of the defence?

Answer 23

In R v Hasan the courts took a stance on making the defence unavailable to those with criminal connections, however judging their acts on this from an outsiders perspective may be too harsh, the principle is unacceptably wide

Question 24

What is strange about the defence allowing convictions for s.18 GBH with intent but not for murder?

Answer 24

The mens rea is identical, should be none or both allowed

Question 25

How does a mandatory life sentence for murder work when pleading duress?

Answer 25

You cannot use defence but may come into considerations when sentencing as judges have some discretion, R v Gotts 1992 D put on probation

Question 26

What is the issue with not considering low IQ a characteristic in the Graham test?

Answer 26

Too harsh, as they may fail to understand true nature of matters, also may make it harder to be courageous or resist a threat

Question 27

What is the issue of the defence and domestic violence?

Answer 27

Women subjected to abuse who are bullied into committing a crime may be denied the defence, therefore there should be different restrictions under this area

Question 28

What is the issue with seeking police protection?

Answer 28

R v Hudson and Taylor 1971 - D’s may be too afraid to go to police because of the consequences

Question 29

What part of duress is a good development in the law?

Answer 29

Decisions in R v Wright 2000 and R v Shayler 2001 (friends and boyfriend) expand the categories of ‘allowable’ victims

Question 30

What did the law commission recommend in 2005 and 2006 on the defence of duress?

Answer 30

2005 - duress should be a partial defence to murder, reducing liability to manslaughter
2006 - in ‘murder, manslaughter and infanticide’ defence should be available as a full defence to fatal offences, confirming its earlier proposal in 1977 that it should be a full defence to all crimes

Question 31

What situation would you use the defence of necessity?

Answer 31

When the D finds himself in a situation where he commits a crime against an innocent person or property in order to save himself or his own property

Question 32

When was necessity held not to exist?

Answer 32

Before the 1980’s - stems right back to the case of Dudley and Stephens 1884 where necessity plea was rejected

Question 33

What famous quote on necessity was said in Southwark London Borough Council v Williams 1970?

Answer 33

‘necessity would open a door that no man could shut’ if used sparingly
- this case was the one where the family lived in council houses when homeless through no fault of their own

Question 34

What case recognised that necessity does exist although its scope is not well established?

Answer 34

R v Richards 1986

Question 35

What case did doctors use the defence against a pregnant woman?

Answer 35

F v Berkshire Health Authority 1990 - court said doctors were allowed to perform sterilization operation on a woman incapable of consenting due to learning disabilities, high chance she would become pregnant if not and this would have a very disturbing impact on her

Question 36

What sort of acts provide defences that can be seen as necessity defences?

Answer 36

Allowing the emergency services to break the speed limit

Under Criminal Damage Act 1971 it is permissible to destroy anothers property for immediate need to protect yours

Question 37

What decade was there a problem with people thinking necessity and duress of circumstances were the same?

Answer 37

1980’s - case Re A 2000 made it clear that necessity was choosing lesser of 2 evils where as d.of.c is not

Question 38

Explain the case Re A 2000…

Answer 38

Operation of conjoined twins where it would save one but kill the other, if not performed both would die. Parents did not want to choose as they were Catholic so hospital took them to court where Brooke LJ said the necessity plea was allowed to save one twin rather than let them both die

Question 39

What is the problem with the precedent set in Re A on necessity?

Answer 39

It is a civil case so not binding on criminal cases. It could be that necessity could be a defence to murder in criminal cases however there is no case law as of yet

Question 40

What happened in the case of R v Shayler 2002 in relation to necessity?

Answer 40

It was denied. D was charged with disclosing confidential documents in breach of Official Secrets Act 1989 and claimed necessity but conviction upheld

Question 41

What did R v Shayler 2002 confirm within the necessity defence?

Answer 41

A 3 part test for the defence to work…
1 - act must be done to prevent a greater evil
2 - evil must be directed towards D or a person whom D was responsible for
3 - act must be reasonable and proportionate to evil avoided
SHAYLER FAILED ON 2ND POINT

Question 42

What are 2 more recent cases showing the limited availability of the defence of necessity?

Answer 42

R v Quayle and Others 2005 - using illegal drugs for medical conditions (MS for example) to relive painful symptoms, court said defence was not allowed as contradicted a clear legislative policy (use of controlled drugs)
R v Altham 2006 (used cannabis for pain relief - same approach as case above)

Question 43

What are the 3 arguments against having a defence of necessity?

Answer 43

Excuse for wrongdoing - ‘necessity would open a door that no man could shut’
Public policy arguments seen in R v Dudley and Stephens 1884 against using it for a murder charge
It has been suggested that the prosecution can use discretion whether to prosecute or not

Question 44

What are the 3 arguments in favour of having a defence of necessity?

Answer 44

Academic Alan Norrie stated that necessity is raised in cases where the social or natural circumstances are out of D’s control so it is difficult to argue D’s acted under own free will
The lack of defence suggests the law allows people to act heroically which contradicts general duty of care
Leaving discretion to prosecuting authorities is not very satisfactory as leads to unfairness and inconsistency

Question 45

What did the Law Commission in 1977 suggest about a reform of necessity?

Answer 45

That they opposed to a defence of necessity. It was severely criticized