Duress by threats, Duress by circumstances and Self Defence Flashcards
what type of defence is duress by threats
excusatory defence
what is duress by threats
There was a reason for the D’s actions – even though we do not agree with the conduct, we understand the reasoning
D was forced by someone else to break the law, because a failure to do so would lead to harm to someone else
D must be reasonably believed that they (or another) were threatened with death or serious injury
The response would be something that a reasonable person would do, must show reasonable steadfastness
what type of offence is duress by threats
common law offence and remains uncodified
what will duress by threats not be a defence to
murder, attempted murder, treason offences
three main issues in threat and demand
The content of the threat
Who made the threat?
The content of the demand
A-G v Whelan (1934) - duress by threats
“…threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance e should be accepted as a justification for acts which would otherwise be criminal.”
Hasan 2005 - content of the threat
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
consent of the threat
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
Safi (2003)
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
does the threat need to exist?
Duress can be based upon a mistaken belief – but the belief must be reasonable, and this is an objective test
Does raise issues regarding consistency regarding self defence
who made the threat?
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 focussed on human frailty, but not individual frailty
who is the threat aimed at?
The issue of who the threat is aimed at is contentious as it effectively asks, who we should care for
Previous cases have demonstrated that the class of people may be wider than expected including, family, friends, colleagues and even strangers
content of the demand
The purest form is where X makes an explicit demand, but it may end up being vague or implicit
X must specify a crime as without that, the defence is far harder to prove
Ali (1995) - content of the demand
X must give indication of the type of crime that is to be committed but there is no need for intricate specifics
D’s response to the effect
Duress will only apply when it was the qualifying threat that was the thing that made the D offend
Imminence is important
- Did D have time to escape without offending?
Does D have an effective means of escape?
If D could escape and avoid offending, then Duress is increasingly unlikely
fortitude from D
The D should display reasonable steadfastness in resisting the threat and demand from X
The threat may be real, but a reasonable person would not have been tested by it
exceptions
Bowen (1996)
- When someone may not be able to hold the same standard
D’s age, sex, pregnancy, serious psychical disability, recognised mental illness or condition
The test then shifts to a reasonable and sober person with these characteristics
limitations of the defence
murder
- Not available as est in R v Howe (1987) if commited 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
duress of circumstances
an extension of Duress by threats
where there is no specific threat or demands, but the circumstances D finds themselves in create an overbearing of D’s will
Willer (1986)
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
Conway (1989)
Confirmed the defence of duress by circumstances and set out three key elements which are crucial in succeeding in the defence
D drove dangerously in order to avoid assailants, whom he believed were intent on killing his passenger
what are the three elements of Duress of Circumstances
- No defence to murder, attempted murder, certain treason offences and not in circumstances of prior fault
- D must reasonably believe that the circumstances posed a threat of death or SI which compelled them to commit the offence
- D must show reasonable steadfastness in response to the threat
self defence
Called public and private defence
Gives 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
where and what can you self-defend?
You are capable of using reasonable force to
- Defend himself from an attack
- Prevent an attack on another person
- Defend his property
S3 (1) Criminal Law Act 1967
”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.:”
reasonable force
Law allows for only reasonable force to be used in the circumstances
Reasonableness is judges in the light of the circumstances
what two tests look at reasonableness
Subjective: did the D believe the force they used was reasonable? To just use this would be inappropriate – what is the D thought shooting someone for being pushed was fair
Objective: what would a reasonable person believe would be appropriate?
reasonable force combined test
Was the degree of force D used objectively reasonable based on the subjective facts as D believed them to be?
R v Owino (1995)
True rule is that a person may use such force as it objectively reasonable in the circumstances as he subjectively believes them to be
duty to retreat
Not necessary to demonstrate that you had an unwillingness to fight – there are times at which the defendant might reasonably react immediately
Down to the Jury to decide whether the D acted reasonably in standing his ground or whether a reasonable man would have taken the option to run away
imminence of the attack
Isn’t necessary that the defendant be attacked first
Lord Griffith in Beckford (1988)
- “circumstances may justify a pre-emptive strike”
defence of property
It can rarely be reasonable to use deadly force to protect their property
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)
- Trespasser themselves can plead self-defence if the occupier of the house uses excessive force
