General Defences

Question 1

Elements of Duress by threats

Answer 1

Burden of proof by prosecution, if D said there was Duress, prosecution have to show beyond doubt that he is lying.
The scope of this defence is very limited, you can only rely on a threat of death or serious bodily harm to you or a family member. No case law for friends, but most people would assume duress stretches to that situation

Question 2

Must be threat of serious harm or death, indefinite imprisonment is insufficient

Answer 2

R v Dao

Question 3

Must be motivated by the threat

Answer 3

R v Valderrama-Vega

May be a carrot-and-stck approach but your mind must be on the stick

Question 4

D must have reacted reasonably to the threat (objectively)

Answer 4

R v Graham

Couldn’t, for example, slaughter a room full of children to avoid getting beat up

Question 5

Cowardice not a defence, reasonable levels of courage and fortitude assumed

Answer 5

R v Bowen

Perhaps flawed as people always think they’re braver than they really are

Question 6

Not compelled to contact police if you would fear harm as a result of doing so

Answer 6

R v Hudson and Taylor

Police can’t protect you forever, could still be killed on the streets later

Question 7

Are compelled to contact police where there is time between threat and crime, H and T wrongly decided

Answer 7

R v Hasan

Duress only relevant in the here and now

Question 8

Can’t rely on duress where you have voluntarily associated with someone you know is in the habit of making people do things under threat, even if you are surprised by the nature of what you are asked to do

Answer 8

R v Hasan
Lady Hale dissented. Imagine battered wife situation. May envisage doing the cooking, but not helping with crimes. Exclusionary rule should apply only where they know they would be forced to commit crimes. Also, may associate with the man outside of the context of the criminal fraternity.

Question 9

Exclusionary rule applies where you should know even if you don’t know

Answer 9

R v Ali

Question 10

Duress of threats not available for murder, even where you are just an accomplice

Answer 10

R v Howe

Question 11

Duress of threats not available for attempted murder either

Answer 11

R v Gotts

Question 12

Where is duress of circumstances available

Answer 12

Where the crime you commit is a reasonable course of evasive action to avoid death or serious bodily harm in an emergency situation

Question 13

Duress of circumstances to escape violence

Answer 13

R v Conway

dangerous driving to escape thugs

Question 14

Duress of circumstance to prevent someone from self harm

Answer 14

R v Pommell
Took friend’s firearm
(Was probably lying but the court said the defence exists if he were truthful)

Question 15

Duress of circumstances to seek asylum

Answer 15

R v Safi

Hi-jacked a plane to escape Taliban

Question 16

Escape need not be from immediate harm as long as there is reasonable belief of impending danger

Answer 16

R v Safi

Reasonable belief that the taliban was coming

Question 17

Method of offending must have some plausible prospect of achieving the aim of avoiding death or gbh and an insistence on a real (or at least perceived) emergency
Must be able to identify the threat

Answer 17

R v Shayler
leaked MI5 secrets to protect the public but could not say who it protected, from what, or why he was responsible for them

Question 18

Method of offending must have some plausible prospect of achieving the aim of avoiding death or gbh and an insistence on a real (or at least perceived) emergency
Need reasonable prospect of achieving objective

Answer 18

R v Bronson

Took police officer hostage to avoid getting sent to a different prison where guards had beaten him

Question 19

Method of offending must have some plausible prospect of achieving the aim of avoiding death or gbh and an insistence on a real (or at least perceived) emergency
Only for one-offs, not ongoing issues

Answer 19

R v Quayle and others

Use of cannabis to cure pain

Question 20

Method of offending must have some plausible prospect of achieving the aim of avoiding death or gbh and an insistence on a real (or at least perceived) emergency
Some things up to parliament, can’t take into own hands

Answer 20

London Borough of Southwark v Williams
(actually decide no necessity)
Homeless trespassing as they had nowhere else to go

Question 21

Where is necessity available?

Answer 21

Where D harms another’s interests to protect the interests of others. Effectively, he has sacrificed the interests of the victim to further the interests of others; and for that reason “necessity” is a “lesser evils” defence

Question 22

R v Dudley and Stephens (1884)

Answer 22

Sailors adrift. Dudley and Stephens say law of the sea is someone can be killed for the rest to survive. Knifed to death and ate the junior, Parker. Were rescued shortly afterwards, no way to know if they’d have survived
Found guilty
Not for ordinary men to decide which laws could be dispensed with. Also said in most cases of necessity the person doing the thing will generally have a vested interest, and therefore the Christian duty required that a man should be willing to sacrifice himself rather than taking the life of another. Also, not mentioned, looks like a bit of a hierarchy. Seniors decide, junior gets eaten. Some ask whether it would still have been murder if there had been a fair way of deciding who gets eaten
Stands strong for rest of C20th

Question 23

Re A

Answer 23

All the courts decided a defence of necessity could be evoked and would not, therefore, be murder. Defined necessity very narrowly, almost as if it applied only to the facts of this case
In their view the killing of the cabin boy was an absolutely immoral act, whereas the separation was clearly ethical. No reasoning given, so not especially convincing
Also, in Dudley and Stephens, cabin boy was chosen. Not for them to play God and pick who dies. This element not present in conjoined twins case as there was no question of choosing someone to die. Mary had been pre-destined to die before she had even been born.
Better way to distinguish could be the point of choice adapted. Don’t just choose cabin boy to die, need him to die so they can eat him. Therefore direct intention to kill. Was a literal sacrifice, want and need to kill this person. Whereas in conjoined twins, killing of Mary was not direct intention. Did not do it wanting or needing Mary to die, but knowing that she, regrettably, would. Makes element of sacrifice less prominent
Maybe distinct bc not to the Doctor’s benefit, they are acting for another, thus no issue of their Christian duty.
Also, Re A followed proper channels. Brought to thee court of law to decide rather than taken into own hands. Court can consider C v DPP criteria

Question 24

Euthanasia

Answer 24

Not protected by necessity bc there is a direct intention to kill. Wanted/needed to kill the patient to cure the pain. Indirectly intended death is okay, however. For example the Doctor injecting increasing amounts of painkiller that was not wanting/needing to kill him but was inevitably accelerating/causing his early death
C v DPP criteria to change the law
o Is the answer to the case clear?
o Considered by Pt?
o Purely legal, or engages social policy?
o Discarding any fundamental doctrines?
o Would it lead to greater clarity