Duress, Duress of Circumstances, and Necessity Flashcards
def, test, effect
Duress
Graham (1982) def: In duress the words or actions of one person break the will of another.
TEST:
Graham (1982)
1) FIRST LIMB OF TEST
- there needs to be actual threat - must be external (ie not pain) (Quale [2005])
- Belief that there was a threat AND
- must be reasonable to believe that there was a threat
2) SECOND LIMB OF TEST
- would sober person of reasonable firmness respond in the same way?
Bowen [1996]
- lowered part 2 of Graham to just ‘ordinary person sharing characteristics of D’
- Certain characteristics can be taken into account into level of reasonable firmness of will. (age, sex, pregnany, serious physical disability, recognised mental illness)
effect:
Hasan (Z) [2005]:
- duress does not afford defence to murder, attempted murder (and forms of treason which is not covered in module)
- BUT if reasonable force is used which results in murder… then there is possible defence in S3 of Criminal Law Act 1967 (prevention of crime)
first limb of duress test: nature of the threat
what types of threats suffice
what threat suffices:
Quale [2005]
- threat must be external (ie not pain, not imaginary)
(Hasan [2005])
- Threat must be threat of death or GBH
A v R [2012]
- threat to rape suffices
NOT SUFFICE:
Lynch [1975]
- threat to property does not suffice (property ie anything you own including pets)
first limb of test: threat against whom?
Hasan [2005]
- threat must be made against D, D’s immediate family or someone close to D.
first limb of duress test: nomination of crime
Cole [1994] : the threat must coincide with the criminal act of D.
First limb of duress of threats test: immediacy?
Hudson and Taylor [1971]:
- 2 time gaps: how long you have to make up your mind, how long you have before threat can be carried out.
Hasan [2005]
- execution of a threat must be** reasonably believed** to be imminent and immediate if it is to support a plea of duress
Second limb of duress of threats test: characteristics of D.
second limb says:
- ‘a sober person of reasonable firmness, sharing the characteristics of the defendant…’
FIRMNESS OF WILL:
Emery (1993)
- duress can, over. aperiod of time, reduce a persons ‘firmness of will’
Hurst [1995]
- the continuing duress must be the same duress
Bowen [1996]
- lowered part 2 of Graham to just ‘ordinary person sharing characteristics of D’
- Certain characteristics can be taken into account into level of reasonable firmness of will. (age, sex, pregnany, serious physical disability, recognised mental illness)
effect, test, authority
Duress: Voluntary Association
EFFECT:
precludes the use of duress as defence.
TEST:
Ali [2008]:
- you do not need to foresee or know that duressor is engaged in illegal activity
- You need to be voluntarily associated with them
- Needs to be foreseeable that you would be subjected to threats of violence.
Test, Authority,
Duress of Circumstances
TEST (basically the same as graham test)
Colin Martin (1989)
- Available only if:
- From objective standpoint, acted reasonably and proportionality to avoid threat of death or GBH
- Reasonably believed threat
- Good cause to fear threat of death/GBH
- Sober person of reasonable firmness sharing characteristics respond to situation as the accused acted?
Duress v Necessity
Re A (Children) (Conjoined Twins: Surgical Seperation) [2001]
- In cases of pure necessity the actor’s mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified.
Authority, test
Application of Necessity and standard to be applied.
TEST:
Re A [2001] (conjoined twins case)
i. the act is needed to avoid inevitable and irreparable evil;
ii. no more should be done than is reasonably necessary for the purpose to be achieved;
iii. the evil inflicted must not be disproportionate to the evil avoided
STANDARD
Wawrzyniak [2017]
- ask D did the act (subjective question which can consider mental age)
- whether propoertionate in D’s mind
def, Test, authority
Best Interest Necessity
def: The person that someone is wronging is the person they are doing the thing for. (Doing something for someones best interest)
TEST:
Re F [1990]
- Must be need to act when cannot be communicated with person acting for.
- Act must be one that reasonable person would (considering all circumstances) take acting in best interest of person acted for
- Cannot be used when another, more appropriate, person is available and willing to act
- Cannot be used against express wishes of person being acted for
