Duress & Necessity Flashcards
What is duress?
• Defence based on the fact that the D has been effectively forced to commit the crime. By either death or very serious injury
• However, despite this the D knowingly does the AR and has the required MR - so without this defence D would be liable
What are the two types of duress
Duress by threat Duress of circumstance (or necessity) This is called the defence of necessity
What is duress a defence to?
• Duress is a general defence and can be used as a defence to all crimes except:
• murder,
• attempted murder and
• possibly treason
Duress and Murder
In R v Howe (1987) SC ruled that the defence was not available to anyone charged with murder, even if they were only a secondary party (had not done the killing themselves)
• Rule applies even where the D is young an less able to resist pressure - R v Wilson (2007)
Attempted Murder
Obiter from Howe - duress should not be a defence to attempted murder.
R v Gotts (1992) CA decided to follow this obiter statement.
Threat to make D commit a specific offence
R v Cole (1994)
The threat must be to commit a particular fence and not a general threat. Therefore, Cole could not use duress.
Seriousness of the Threat
• Must be of death of serious injury, lesser threats do not provide a defence
• E.g. a threat to disclose a previous conviction is not sufficient for duress
• However, the cumulative effect of the threats can be considered. What do we mean by cumulative effect of threats?
R v Valderrama-Vega (1985)
If there had not been a threat of death, then the other threats in this case would not be enough on which to base a defence of duress. But as there had been a threat of death the jury was entitled to consider the whole of the threats.
Threats to whom?
• R v Martin (1989) - recent cases in England it has been accepted that threats to family can be a basis for duress.
• R v Conway (1988) - threats to a passenger were accepted for duress
• Threats to Strangers
• Seems likely that the courts would now allow this:
• E.g. a man seizes hold of someone you do not know, and then orders you to firebomb a particular building and cause severe damage to it or else he will kill the stranger.
• The draft criminal code proposed that this should be the law.
What kind of situation would this be good for?
Subjective and Objective Tests
The 2 stage test comes from the case of RvGraham (1982) and approved by HL in R v Howe (1987):
The jury must consider:
- 1. Was the D compelled to act as he did because he reasonably believed he had good cause to serious injury or death? Subjective test
- 2. If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way?
Objective test
What is the objective test?
• Would the reasonable man respond in the same way?
• With certain characteristics in consideration
• R v Bowen (1996) - it was accepted that the following could be relevant:
- Age
- Pregnancy
- Serious physical disability
- Recognised mental illness or psychiatric disorder
- Gender
No safe avenue of escape
• Duress can only be used if the D is in a situation where he has no safe avenue of escape
• R v Gill (1963) - as he had a safe avenue of escape he could not rely on the defence
Imminence of threat
Threat must be effective at the moment the crime is committed
• R v Abdul-Hussain (1999)
1) There must be imminent peril (means risk) of death or serious injury
2) The peril must operate on Ds mind at the time of committing
3) Execution of the threat need not be immediately in prospect.
Intoxication and Duress
• If D becomes voluntarily intoxicated and mistakenly believes he is being threatened he cannot use duress.
• A mistake in the these circumstances is unreasonable
• However, if there is no mistake and the intoxication is irrelevant to the duress, the D can use the defence. What does this mean?
Self-induced duress
• D brings on the duress himself through his own actions
• E.g. D voluntarily joins a criminal gang and commits some offences but then is forced under duress to commit other crimes which he did not want to do
R v Hasan (formerly Z) (2005)
So, self induced duress is not available where a D realises or ought to have realised that he may be threatened with violence and compelled to commit an offence
Duress of circumstances
• It is only recently the courts have recognised that D may be forced to act because of surrounding circumstances
Driving offences cases
R v Willer (1986)
D drove on pavement to get away from youths
R v Conway (1988)
D drove recklessly thinking he was about to be hurt
R v Martin (1989)
D drove whilst disqualified as suicidal wife made him
