Duress + Necessity Flashcards
Duress
Complete acquittal if found
- Rational-based defences are not denying that you have the AR and MR, but are an excuse, a here’s why …
- EXCUSE = R v Riddel = making off without payment case, where taxi driver tries to stop her and she hits him with her car. This case held if the force is directed against the source, then self-defence can be pleaded, but conviction upheld as jury didn’t believe her claim that she thought she paid and this guy was threatening her anyway
Duress
The general rule
The general rule = R v Grasham:
- Impelled to act as a result of what he reasonably believed [the duressor] had said or done, he had good cause to fear that if he did not so act [the duressor] would kill him or… cause him serious physical injury
- Have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the duressor] said or did by [committing the charged offence]
= affirmed in Howe
‘Duress by threats’ and ‘duress of circumstances’
- Martin (Colin) = Disqualified driver, suicidal wife says that she will kill herself unless he drives their son, he is then stopped by the police, it is duress by threat, as it is a nominated offence
- Vs. R v Willer = gang members chasing him, he drives his car onto the pavement and through a shopping area, duress of circumstance, as the duressor did not nominate a crime for D to commit
Duress
Reasonable beleif and threats
- Reasonable belief in the existence of the threat = R v Safi: not a true belief, just a reasonable one [a higher standard than self-defence, which is an honest belief, so better to plead self-defence] - political group against the Taliban, hijack a plane on the assurance that their claim for asylum will be considered, mistaken belief does not withdraw the defence
- A threat of death or serious injury to person [Willer] + the threat has to be external; you can’t argue that there was a threat that you were going to kill yourself [R v Rodger and Rose – prise escape case]
Duress
Threats that are not enough
- Damage to property – DPP for Northern Ireland v Lynch
- Blackmail – R v Singh
- Psychological injury – R v Baker (Janet)
- vs. Threatening D or persons for whose safety D reasonably regards himself as responsible = Hansan: threats to D, their immediate family, or for those whose safety D reasonably regards himself as responsible [+ Shalyer – still duress if a bomb will go off if you don’t commit a minor crime, even if you do not know the people it will kill]
Duress
Might a sober person of reasonable firmness responded in the same way?
- Imminence and retreat: R v Hudson and Taylor = Perjury case, the fact that they could not hurt her there and then did not take away the plea as imminence is broad enough to apply here, not going to the police didn’t take away the plea either as they are not personal bodyguards, who cannot protect everyone
- Proportionality of response: R v Valderrama-Vega = must be proportionate + ‘but for’ cause used when considering all threats, then you can consider them all
- A sober person of reasonable firmness [supplements proportionality test] = R v Bowen: might have reacted in the same way as D, not that they would have, just might have
+ Graham = if D if more vulnerable to threats this cannot attribute to the reasonable person vs. if D is in a category who is less able to resist pressure, then the characteristics of that category can be attributed to the reasonable person [such as a child, sex, pregnancy, physical or psychiatric] vs. Characteristics due to self-induced abuse cannot be attributed to the sober person – such as alcohol and drug abuse
Duress
Limits to the defence
- Howe overruled Lynch = duress cannot be pleaded for murder, arguably unfair, as proportionality can take care of the issue
- R v Gotts = D cannot plead duress in attempted murder
- D’s prior fault = Hasan: if D can be blamed for getting themselves into that situation, then you cannot plea duress – if a person voluntarily or remains associated with others in criminal activity where he knows or ought to reasonably know that he may be the subject of compulsion, he cannot rely on the defence [vs. Hale’s worries on domestic abuse contexts where you cannot leave your family]
Necessity
Types
Best interest necessity = committing an offence against V for the benefit of V, such as in medical cases
Lesser evils necessity = choosing to commit the AR and MR but otherwise a much greater evil would have occurred
Historical hostility towards necesiity
- R v Dudley and Stephens = shipwreck survivors stranded, no necessity, convicted of murder, but they got a pardon
- Buckoke v Greater London Councill = refused to apply the defence of necessity, for fire trucks running a red light, but they said that they were hoping it would never get to that stage as prosecutors have discretion
- R v Kitson = car rolling down a hill, so interfere by stirring, but whilst intoxicated, no duress of the circumstance at the time, courts held that the common law has not recognised necessity
- Southwark LBC v Williams = homeless took shelter, charged with trespassing, court held that no one’s house would be safe if necessity was granted - ‘necessity can very easily before a mask for anarchy’ per Lord Edmund-Davis
Best interest necessity - test
- Gillick v West Norfolk and Wisbech AHA = in circumstances which V cannot legally or practically consent, you cannot impose your views = doctors giving contraceptive advice to those who were underaged - the court held that the doctors would not have a guilty mind as they had no intention, instead clinical judgment for the patient’s best interest = laid the foundation for necessity
- Re F v West Berkshire Health Authority = relationship in institution case, so the hospital went to court for permission to steralise, her mother consented, so the court created necessity for best interest: 1. there must be a necessity to act [when it is not practicable to communicate with the person] + 2. the action is one that a reasonable person in all the circumstances would take, acting in the person’s best interest – in cases where there is a lack of ability to communicate, then the claimants must go to the court to have the decision decided for you
Best interest necessity - applying the test
- R (on the application of Nicklinson) v Ministry of Justice = necessity, but it was dismissed; it cannot be in anyone’s best interest’ to die
- St. George’s Healthcare NHS Trust v S = you cannot substitute consent, nor can you substitute your evaluation of V’s best interest for their own evaluation of their best interest = V was pregnant, but there were complications, refused c-section the court held that the mother had the complete right to decide
Lesser evils necessity
- R v Pommell = D was found by the police with a loaded machine gun - question of necessity should have been left to the jury
- R v Thacker = to prevent a flight deporting individuals seeking safety in the UK, some were still in legal proceedings protesting their deportation, so they broke into the airport and tied themselves to the wheel of the plane, charged with terrorism, conviction set aside on the first ground, and necessity considered in obiter dicta
Lesser evils necessity - twins
Re A (children) (conjoined twins: surgical separation)
- M weaker, surviving off J, both would die if not separated, parents were Roman Catholics so were not consenting, the court held that it was not in M’s best interest to be killed
- Lord Brookes’ requirements for necessity: 1. the act must be needed to avoid inevitable and irreparable evil, 2. It should be no more than reasonably necessary for the purpose to be achieved, and 3. The evil inflicted must not be disproportionate to the evil avoided
- The court granted permission, so necessity defence was granted
- The court did not overrule R v Dudley and Stephens, which says that they won’t play God, but have in this case by giving an innocent child merely existing the death sentence
- There was also the self-defence argument = you can step in to defend others, as M was using J, although it is not an attack, she is merely existing
- Dsouza= the court should not have granted permission, but let the doctors do what they think was right, so excuses them
Essay Questions
Advanatges and Disadvanatges of duress
- duress does not include the threat to psychiatric harm, which is controversial
- the threat must be imminent for duress but domestic abuse cases it may not be
- the test for Might a sober person of reasonable firmness responded in the same way, is objective, so cannot account for why D reacted, only catagories [Graham]
Essay Questions
Advanatges and Disadvanatges of necessity
- historically not recognised
- Dudley v Stephens is controversial, should have been granted necessity
- unclear law as case alw in underdeveloped as not regularly granted
