Duress by threats, Duress by circumstances and self defence

Question 1

defences

Answer 1

• Duress by threats and duress by circumstances

- Self defence

Question 2

duress by threats

Answer 2

• What we consider to be an ‘excusatory’ defence, there was a reason for the D’s actions
• The general concept is focused around the idea that the D was forced by someone else to break the law, because a failure to do so would lead to harm to someone else

Question 3

A-G v Whelan (1934)

Answer 3

“…threats of immediate death or serious personal violence so great as to overbear the ordinary powers f human resistance e should be accepted as a justification for acts which would otherwise be criminal.”

Question 4

notes on duress by threat

Answer 4

• It is a common law offence and remains un codified
• It will not be a defence to murder, attempted murder, treason offences and not in circumstances of prior fault
• D must reasonably have believed that they were threatened with death or serious injury
• The response would be something that a reasonable person would do, must show reasonable steadfastness

Question 5

3 main issues to consider on threat and demand

Answer 5

1) The content of the threat
2) Who made the threat?
3) The content of the demand

Question 6

content of threat

Answer 6

• As confirmed by Hasan [2005] the threat must concern death or serious personal injury – if it isn’t one of these, even if it is far higher than the offence being asked of D
• Duress is not a ‘balancing of evils’ defence
• GBH and above appears to be the threshold, although Rape will also be considered to be allowed

Question 7

does the threat need to exist

Answer 7

• Clarified in Safi [2003] where the court revealed there was no need for there to be objective evidence of a threat, as long as the D reasonably believed it to exist
• Duress can be based upon a mistaken belief – but the belief must be reasonable, and this is an objective test
• However, this does raise issues regarding consistency regarding self defence!

Question 8

who made the threat

Answer 8

• The threats need not directly be spoken from X, they can come from a third party – but the law stipulates they must be external from D
• Duress is focused on human frailty, but not on individual frailty

Question 9

who is the threat aimed at

Answer 9

• The issue of who the threat is aimed at is contentious as it effectively asks, who we should care for
• Previous cases have demo’d that the class of people may be wider than expected including, family, friends, colleagues and even strangers

Question 10

content of the demand

Answer 10

• The purest form is where X makes an explicit demand, but it may end up being vague or implicit
• However, the X must specify a crime as without that, the defence is far harder to prove
• Ali [1995] the X must give indication of the type of crime that is to be committed but there is no need for intricate specifics

Question 11

defendants response to the threat

Answer 11

• Duress will only apply when it was the qualifying threat (that of SI or death) was the thing that made D offend
• Imminence is important – did D have have time to escape without offending? Imminence debated here – doesn’t translate to immediacy, see Anne Frank
• Does D have an effective means of escape?
• If D could escape and avoid offending, then Duress is increasingly unlikely

Question 12

fortitude from defendant

Answer 12

• The D should display reasonable steadfastness in resisting the threat and demand from X – aka, an adult threatened by a baby
• The threat may be real, but a reasonable person would not have been tested by it
• Graham [1982] would a reasonable and sober person have acted in the same way?

Question 13

exceptions

Answer 13

• There are clearly exceptions where someone may not be able to held to the same standard, as established in Bowen [1996]
• D’s age, sex, pregnancy, serious psychical disability, recognized mental illness or condition (IQ)
• The test then shifts to a reasonable and sober person with these characteristics

Question 14

limitations of the defence

Answer 14

• Murder: not available as est in R v Howe [1987] if committed as either a principle or accomplice
• Attempted Murder: not available as est in R v Gotts [1992] - it is pure chance an attempted murderer isn’t a murderer

Question 15

what is duress of circumstances

Answer 15

• an extension of Duress by Threats
• It is where there is no specific threat or demands, but the circumstances D finds themselves in create an overbearing of D’s will
• E.G: tsunami, car crash?

Question 16

willer [1986]

Answer 16

• D drove his car slowly on a pavement to avoid a group of youths who were intent on causing serious harm, D charged with reckless driving and tried to raise necessity
• CoA declared it was a defence of duress, and not one of necessary

Question 17

Conway [1989]

Answer 17

• Confirmed the defence of Duress by Circumstances and set out three key elements which are crucial in succeeding in the defence
• In Conway, the D drove dangerously in order to avoid 2 assailants, whom he believed were intent on killing his passenger

Question 18

elements of duress of circumstances

Answer 18

• No defence to murder, attempted murder, certain treason offences and not in circumstances of prior fault
• D must reasonably believe that the circs posed a threat of death or SI which compelled them to commit the offence
• D must show reasonable steadfastness in response to the threat

Question 19

what is self defence

Answer 19

• Frequently called the ‘public and private defence’
• Gives a complete defence to any charge where D uses otherwise unlawful force to protect either public or private interests
• Now considered to be just one defence that covers both interests

Question 20

where and what can you self defend

Answer 20

• Defend himself from an attack
• Prevent an attack on another person
• Defend his property

Question 21

S3 (1) Criminal Law Act 1967

Answer 21

”A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders por of persons unlawfully at large.:”

Question 22

reasonable force

Answer 22

• The law allows for only reasonable force to be used in the circs
• Reasonableness is judged in the light of the circumstances
• In R v Palmer [1971] Lord Morris directed that a jury should be directed to look at the facts and circumstances of the case

Question 23

2 tests to look up reasonableness

Answer 23

• Subjective: did the D believe the force they used was reasonable? To just use this would be inappropriate – what if the D thought shooting someone for being pushed was fair?
• Objective: what would a reasonable person believe would be appropriate?
• These approaches are now combined in the following test:
  Was the degree of force D used objectively reasonable based on the subjective facts as D believed them to be?

Question 24

R v Owino [1995]

Answer 24

• The true rule is that a person may use such force as is objectively reasonable in the circumstances as he subjectively believes them to be

Question 25

duty to retreat

Answer 25

• It is not necessary to demonstrate that you had an unwillingness to fight – there are times at which the defendant might reasonably react immediately
• It is down to the Jury to decide whether the D acted reasonably in standing his ground or whether a reasonable man would have taken the opp to run away

Question 26

imminence of the attack

Answer 26

• It isn’t necessary that the defendant be attacked first

- Lord Griffith in Beckford [1988] ”…Circumstances may justify a pre-emptive strike.”

Question 27

defence of the property

Answer 27

• It can very rarely be reasonable to use deadly force to protect their property
• It is only reasonable and reactive force which can be used, you cannot shoot a burglar just for being within your property – but you can if you fear for your life
• Forrester [1992] – a trespasser themselves can plead self-defense if the occupier of the house uses excessive force