Duress Of Threat And Duress Of The Cicumcision And Duress Of Necessity Flashcards
Where is the defence of duress by threats applicable
-Even if one has been forced to commit a crime owing to a threat of death or serious injury, if they have the mens rea and do the actus reus, they will be liable for that crime.
-If however the defendant can prove that they were so terrified that they failed to be an independent actor, the law will allow a defence. (no longer however a defence murder, attempted murder or treason, even children (Wilson))
What cases ruled that a person who played a secondary role in murder cannot use duress as a defence?
R v Howe (1987) and DPP for Northern Ireland v Lynch (1975)
Why can’t minors claim the defence of duress?
Because people could operate through minors to murder people and claim the defence of duress
Attempted murder doesn’t belong in this deck
Attempted murder required a higher mens rea than actual murder. This is because an attempted murder requires more planning and is harder to prove whereas an actual murder has been carried act and is easier to prove
What threats are sufficient for duress?
-Duress by threat of death or serious violence has to be serious enough to be a defence. In R v Valderrama-Vega (1985), there were a combination of threats, but as death was one, this allowed the jury to consider all of the threats together.
-The threat also has to be to the defendant or their immediate family or partner. Possible that this could include a complete stranger in a specific, subjective context (draft Criminal Code proposal).
There has to be a sufficient connection between the threats and the crime committed – R v Cole (1994).
Subjective test in Duress
was the defendant compelled to act as they did because they reasonably believed they had good cause to fear serious death or injury?
Objective test in duress
-Would a sober person of reasonable firmness, haring the characteristics of the accused have responded in the same way?
-Tests laid down by R v Graham (1982), approved by H of L’s in Howe (1987).
-In R v Martin (DP)(2000), the C of A held that the defendant’s schizoid-affective state was relevant in the first part of the test, the subjective part, in deciding whether he reasonably believed that his and his family’s safety was at risk.
-In Hasan (2005), the H of L’s confirmed the decision in Graham (1982) that D’s belief in the threats must be reasonable and genuine.
-Despite the decision in Martin (2000) to allow special characteristics to be used in the subjective test, this is mostly addressed in the objective part. This was decided in Bowen (1996) where the defendant had a low IQ of 68 and had obtained goods by deception.
-Age, pregnancy, serious physical disability, recognised mental illness and gender can all be relevant.
Can duress be used if there was a safe Avenue of escape?
Under duress, there can be no safe avenue of escape. If it’s established that there had been a window of opportunity, then the defence fails. If police protection is possible, then duress cannot be relied upon, although in R v Hudson and Taylor (1971), there was a different decision. This decision was criticised by the H of L’s in Hasan (2005) however.
What is the law on ‘imminence of threat’?
If the threat is hanging over the defendant at the time they commit the offence, then defence of duress is available. ‘Imminent’ means ‘present’ – R v Abdul-Hussain (1999):
- So, there must be imminent peril of death/serious injury,
- that peril needs to on the defendant’s mind at the time
- the carrying out of the threat need not be an immediate prospect.
• The defence can only be used if the threats are to make them commit a serious offence.
What is the law on voluntary intoxication with duress?
Voluntary intoxication where D makes a mistake about a threat means that defence of duress cannot be used.
What is the law on ‘self-induced duress’?
• As a result of R v Hasan (formerly Z) (2005), self-induced duress is no longer available where a defendant voluntarily associates with others who are engaged in criminal activity and realises or ought to have realised that they might be threatened with violence and compelled to commit an offence.
• Where the defendant voluntarily puts themselves in a situation where it is likely they may be subject to threats of violence of actual violence (like joining a criminal gang), then any duress that may follow is judged to be self-induced.
• In R v Sharp (1987), D couldn’t use defence of duress because he associated himself with a violent gang, but in R v Shepherd (1987), D COULD use defence of duress as the gang he had joined were shoplifters.
What is the law on ‘Duress of Circumstances’?
When the defendant commits an offence owing to the situation they find themselves in (when the only venue of escape is by committing a crime) – R v Willer (1986), R v Conway (1988), R v Martin (1989).
• R v Pommell (1995) – defence of duress available in all situations except murder, attempted murder and forms of treason.
• It’s sufficient for the defendant to show that they acted as they did out of a fear of serious personal injury or death, they’re not required to prove that the threat was an actual or real threat – R v Cairns (1999).
Evaluation of the law on ‘duress by threats’ and
‘duress of circumstances’:
Unavailability for Murder:
No allowances for low IQ: In Rv Bowen (1996) the Court of Appeal refused to allow the fact that the defendant had a very low IQ to be taken into account in deciding whether he found it more difficult to resist any threats. This decision may be seen as harsh as a very low IQ can mean that the defendant fails to understand the true nature of matters.
Police Protection: If police protection is possible, then duress cannot be relied upon, although in R v Hudson and Taylor (1971), there was a different decision as even though police protection was available, the defendant was so afraid of the consequences they didn’t inform the police. This decision was criticised by the H of L’s in Hasan (2005) however which meant that it is uncertain whether a person who is threatened and who does not contact the police, can rely on defence of duress.
Proposals for Reform: The Law Commission in its report, ‘Legislating the Criminal Code: Offences Against the Person and General Principles’ (1993) (Law Com No. 218), proposed that the defence of duress should be available for all crimes. In 2006, the Law Commission’s report, ‘Murder, Manslaughter and Infanticide’ (Law Com No. 304) proposed that duress should be allowed as a defence to murder. However, as with many Law Commission proposals, neither of these have been acted upon.
What is the principle of Duress of Necessity?
Sometimes it might be necessary to break the law in order to prevent a greater evil.
R v Dudley and Stephens (1884) is interesting. They WERE convicted of murder, as necessity was not available as a defence to murder, but this was later commuted to a 6 month prison sentence.
What were the principles of Necessity set out by Brooke in Re A?
- The act was done only in order to avoid consequences which could not otherwise be avoided
- Those consequences, if they had happened, would have inflicted invevitable and irreparable evil.
- No more was done than was reasonably necessary for that purpose
- The evil inflicted by it was not disproportionate to the evil avoided
