General Defences

Question 1

Hasan

HL

Answer 1

EPIC VMC

Lord Bingham summarised the elements of duress:

1) Must be a threat of death or serious injury
2) that threat must have been made to D, immediate family, someone close to him or someone who D regards himself as responsible for
3) D’s perceptions of the threat and conduct are to be judged objectively - his belief that he is under such a threat must be reasonable and his decision to commit the crime in response must be reasonable
4) D’s conduct must have been directly caused by the threat D relies on
5) There must have been no evasive action D could have reasonably taken
6) D cannot rely on threats to which he has voluntarily laid himself open
7) The defence is unavailable to murder, attempted murder or treason.

Question 2

A

Answer 2

The judge held that the requirement of threat of death or serious injury would ‘no doubt’ be satisfied by a threat to rape.

Question 3

Hasan, Graham and Conway

HL

Answer 3

All required a threat of death or serious personal injury.

Question 4

Rodger and Rose

Answer 4

Extraneous threat

D said he just had to break out of prison or he would have killed himself. Held: there was a threat to his life, ht since the threat did not come from an extraneous source, it was no defence.

Question 5

Quayle

Answer 5

Extraneous threat

D laid claim to a need to use cannabis for medicinal purposes. Held: not to be duress of circumstances because no extraneous threat .

Question 6

Safi and others

Answer 6

Duress does not depend on there being an actual risk of death or serious injure, the defence can occur based on what D reasonably believed to be the situation.

Question 7

Conway

Answer 7

Threats against whom?

Threat against a passenger was sufficient to raise the defence

Question 8

Martin

Answer 8

Threats against whom?

D’s wife threatened to commit suicide if he did not drive while disqualified was held capable of being a duress of circumstances.

Question 9

Hasan

Answer 9

Threats against whom?

The threat must be ‘directed against the defendant or his immediate family or someone close to him or for whom he is responsible’.

CRITICISM - responsible is so ill defined.

Question 10

Ghaham correct direction

Answer 10

2 Key Questions for the Jury
¥ Was the defendant impelled to act because, as a result of what he reasonably believed the coercer had said / done, he had good cause to fear that he would otherwise be killed or seriously injured?
Have the prosecution made it clear that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded in the same way?

Direction contains 3 objective elements:

1) D must have reasonably believed in the circumstances of the threat.
2) D’s belief must have amounted to good cause for his fear
3) D’s response must be one which might have been expected to a sober person of reasonable firmness.

And, although not deriving from the Ghaham judgment - D must have had no reasonable opportunity to escape the threat.

Graham shows that an objective test is required. As it is D’s belief which must be reasonable.

Question 11

Which cases confirmed Graham?

Answer 11

HL in Hasan and HL in Howe.

Question 12

W Wilson believed:

CRITIC

Answer 12

D should be judged on the basis of what he honestly believed and what he genuinely feared. The Graham authority is too strict.

Question 13

Bowen

Answer 13

For duress, D’s:

1) Age
2) Gender
3) Pregnancy
4) Serious physical disability.

But D’s low IQ, short of mental impairment or illness is not relevant.

Question 14

Emery

Answer 14

It was said OBITER, that it would be right

Question 15

Ali

Answer 15

Duress does not apply where - D chooses voluntarily to associate with others where he ought to foresee or foresaw that he might be subjected to compulsion by threats of violence.

Thus, deny defence if D’s association with a criminal gang, but also associating with anyone whom he ought to have foreseen MIGHT put him under compulsion by threats. WIDE?

Question 16

Hasan - per Baroness Hale.

Answer 16

Baroness Hale submitted a subjective approach, sugguesting that the defence is denied only where D has himself foreseen a risk that he will be compelled by threats of violence to commit crime. This is the preferable approach, but this is not the law. Hasan is the law which states that it is an objective test.

Question 17

What did Reed say about duress and murder?

Answer 17

“it is inapt to demand heroism as a pre-requisite for exculpation”.

He is saying that the criminal law should not require heroism

Question 18

Law commission and duress and murder

Answer 18

They gave the cab driver example and thought that duress should be available for murder and attempted murder. But D should bear the legal burden on proving the conditions of the defence on a balance of probabilities - thus reversing the burden of proof.

Question 19

Beckford v R

Answer 19

The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

Beckford approved Gladstone Williams statement.

Question 20

Gladstone Williams

Answer 20

Self defence:

“the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another”

D intervened to break up struggle between two men and in fact one of these men, A was actually making a citizens arrest of B. But force used on A would have been reasonable if he had been the aggressor, which D believed him to be.

Question 21

Hasan

Answer 21

1) There can be no defence of duress in a murder case, attempted murder and treason.
2) There must be a threat to cause death or serious injury.
3) Threat must be directed against D or his immediate family or someone close to him or to a person for whose safety the defendant would reasonably regard himself as responsible.
4) Duress is a largely objective test.
5) Defence is available only where D’s conduct was directly caused by the threats
6) There must have been no evasive action he could reasonably have been expected to take.
a. In this situation, this is an objective test, it is “whether D ought reasonably to have foreseen the risk of coercion, whether he actualy foresaw the risk or not”. This is because the policy of the law must be to discourage association with known criminals
b. “If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress”
7) D may not rely on duress to which he has voluntarily laid himself open.

Where policy choices are to occur, Lord Bingham said that there will be a tightening rather than relaxation on the conditions of duress.

Question 22

Gladstone Williams

Answer 22

As long as a belief it reasonably held, its unreasonableness is unimportant. Subjective test.

Question 23

Oye

Answer 23

Insanity cannot generate a defence

Question 24

R v Yaman

CA

Answer 24

‘Section 76 makes it clear that the trigger for using force is assessed subjectively and the defendant’s response is to be assessed objectively.

Question 25

R v Scarlett

Answer 25

pub landlord used force to eject a drunk man and accidentally propelled him down steps to his death. CA appears to say if D used no more force than ‘he’ considered necessary, it would not be manslaughter. CRITICAL DISCUSSION - THIS IS NOT THE LAW.

Question 26

R (Collins) v Sec St

Answer 26

Collins entered home of B at 3am and went upstairs intending to steal as he was later found to be carrying B’s keys and phone, but disturbed by B’s son. B woke up and grappled with C, getting him in a headlock. C suffered brain damage as a result of B. Prosecution decided not to prosecute B because any jury would apply household rule. However, C’s family sought to challenge the householder rule on breach of art 2 because part of implication of art 2 that states should provide a proper framework to protect citizens from offences against the person. Held: no failure of compliance, full range of OAP provisions still apply and householder can be guilty, they only escape if there is reasonable force. There is a discretionary area between disproportionate and grossly disproportionate, it does not allow anyone to go ‘completely over the top’

Question 27

Martin (Anthony)

Answer 27

Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition. D shot and killed a retreating burglar. One of the points was whether D’s personality disorder to perceive that burglars were of more threat were to be taken into account. CA held: no.

Question 28

Press &Thompson CA

Answer 28

The courts when looking at whether force was reasonable will not look at whether D was suffering from PTSD.

Question 29

R v Bird

Answer 29

There is no duty to retreat in every case as this places to great a burden.

Question 30

R (Collins) v Secretary of State

Answer 30

‘In deciding the question [whether the degree of force is reasonable], a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat’ HC said that we need this rule to be flexible because in certain cases such as householder cases, you cannot expect D to retreat from burglar, give him what he wants, or such as a policeman making an arrest.

Question 31

Beckford v R

Answer 31

You can pre-emptively strike in self defence.

Question 32

Devlin v Armstrong [

Answer 32

You can pre-emptively strike in self defence. | the anticipated attack must be imminent”

Question 33

Rashford CA

Answer 33

D may start the fight as the aggressor but still rely on self-defence if the tables are turned. A defendant can rely on self-defence if faced with violence that makes him think he was in immediate danger from which he had no other means of escape (using no more violence than was necessary to protect himself). The defendant had been the aggressor *throughout* the incident, it could not follow that he had acted in lawful self-defence. It followed that the judge’s direction was defective. the defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but the victim and his friends responded out of proportion to the defendant's aggression. At this point, the defendant had to switch from aggression to defence. The Court of Appeal held that the defendant will only lose the defence by being the aggressor throughout. The question is whether the defendant feared that he was in immediate danger from which he had no other means of escape, and if the violence he used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence. On the facts, the jury's decision to convict was not unsafe.

Question 34

Keane CA

Answer 34

confirmed Rashford.

Question 35

R v Duffy

Answer 35

Can use self defence to protect others – D used force to protect her sister from attack. CA held this was lawful there is a general liberty even as between strangers to prevent a felony”

Question 36

R v Clegg HL

Answer 36

In murder, there is no rule that if D uses a greater degree of force than was necessary should be found guilty of manslaughter rather than murder.

Question 37

Hichens

Answer 37

new law emerging in recent years but not really been taken up. use of force against an innocent third party to prevent a crime being committed (eg where a police constable bundles a passerby out of the way to get at a man he believes to be about to detonate an explosive device)

Question 38

Shayler

Answer 38

Extending who the threat must be made too Approved statement in Hussain and said that the threats must be directed towards D or a person whom whom he has responsibility or persons for whom the situation makes him responsible. For example a bomber who says unless you do X i will blow us this building.

Question 39

Graham

Answer 39

Two questions for the Jury: 1) Was the defendant impelled to act because, as a result of what he reasonably believed the coercer had said / done, he had good cause to fear that he would otherwise be killed or seriously injured? 2) Have the prosecution made it clear that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded in the same way?

Question 40

Hasan

Answer 40

There must be threat of death or serious injury - Bingham

Question 41

Dao CA

Answer 41

Cannot claim duress for threat of false imprisonment.

Question 42

Baker

Answer 42

Cannot claim duress for threat of psychological harm. However, this is likely to be wrong considering as psychological harm can be GBH and GBH would satisfy the defence of duress.

Question 43

A CA

Answer 43

Rape is sufficient to have a defence of duress. This was said obiter but CA thought that rape was equivalent to 'serious injury'.

Question 44

Safi CA

Answer 44

D must believe that there is a threat; it need not exist in fact D hijacked an aircraft because they said that they would be killed if they stayed in Afghanistan. CA said provided D reasonably believed in the existence of the threat there does not have to be an actual threat. HL Howe and Graham first stated that it is what D reasonably believed.

Question 45

Martin (David)

Answer 45

D committed two robberies claiming he was under duress from two men who lived on the same estate, he may have been mistaken, he suffered from an illness which made him more likely to feel threatened and perceive statements as threatening. CA upheld his conviction based on Graham but dicta sugguests that a subjective test would be preferable.

Question 46

Rogers

Answer 46

– divisional court went further where D claimed duress of circumstances where he was drink driving to escape from a threatening neighbour. Judge said the test for mistake was subjective and question of “reasonable” in Graham was wrong. But he should not do this because divisional court should regard CA authority as superior. THIS IS NOT THE LAW. But Baroness Hale in Hason thought that it should be subjective, not objective. So did the criminal code law commission 177.

Question 47

Hasan

Answer 47

After Martin (David) and Rogers. Dicta favours the objective test. D should genuinely believe in the threat (Subjective) and this believe must be reasonable as well as genuine (objective).

Question 48

Law commission on duress and murder?

Answer 48

We believe that if it is wrong even in respect of murder to condemn the defendant for not acting heroically rather than reasonably. The Commission's solution, strongly supported by the judiciary and most practitioners, was to place the persuasive burden of proving duress, on the balance of probabilities, on the defence. Hale - If we are not to have legislation to alter the burden of proof, and I agree that it is not open to us to do it ourselves, then I understand your Lordships' desire to maintain the objective standards set by Lord Lane CJ in R v Graham.

Question 49

Hale in on D knowing X

Answer 49

that there was nothing in the case law before R v Baker to limit the kinds of crime which the defendant should have foreseen that he might be compelled to commit. Hale said that this limitation is unworkable. The cases talk about exposing oneself to the risk of "unlawful violence".The foreseeable risk should be one of duress. I would say that it must be foreseeable that duress will be used to compel the person to commit crimes of some sort. It is one thing to deny the defence to people who choose to become members of illegal organisations, join criminal gangs, or engage with others in drug-related criminality. It is another thing to deny it to someone who has a quite different reason for becoming associated with the duressor and then finds it difficult to escape. The Law Commission's Bills all refer to a person who exposes himself to the risk 'without reasonable excuse'. The words were there to cater for the police infiltrator (see Law Com no 83, p 13 (para 2.37)) but they are also applicable to the sort of association I have in mind.

Question 50

Hurst CRITIC

Answer 50

Where a woman had been sexually abused as a child, resulting in her lack of firmness, where this does not amount to a psychiatric disorder, this cannot be taken into account. UNFAIR?! The court held that taking into account the second question of Graham, it is difficult to see how a person of reasonable firmness can be investigates with the characteristics of a person who lacks reasonable firmness.

Question 51

Graham

Answer 51

2nd question of Graham test: reasonable firmness: Public policy requires D display the steadfastness of the ‘ordinary’ and ‘sober’ citizen in his situation. Also suggests some characteristics of D are relevant. But what characteristics?

Question 52

Hurst

Answer 52

A woman who was sexually abused as a child, this characteristic cannot be taken into account. "we find it hard to see how the person of reasonable firmness can be invested with the characteristics of a personality which lacks reasonable firmness” this woman was caught importing cocaine and she claimed to be under the influence of her former boyfriend. Evidence that Hurst had been abused as a child and was a submissive character

Question 53

Bowen

Answer 53

Low IQ is not a characteristic which can be used in assessing reasonable firmnesss. 1) Mere fact of being more pliable, vulnerable, timid or susceptible to threats not generally relevant 2) Increased susceptibility due to self-induced abuse (through alcohol or drugs) not relevant 3) ¥ increased susceptibility due to age, (possibly) sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition may be relevant

Question 54

Emery

Answer 54

LOOK UP IN RELATION TO LEARNED HELPLESS NEDD The experts were ready to testify that Sally Emery had been suffering from battered woman syndrome, a syndrome resulting from prolonged violence and abuse of a woman by her partner that can induce a forn of 'learned helplessness' characterised by an inability to stand up to the abuser, a feeling of dependence on the abuser, and an inability to withdraw from the situation

Question 55

Dicta in Hasan and authority from Brandford

Answer 55

The target of the threat must be D or ‘someone for whose safety [D] would reasonably regard himself as responsible’

Question 56

Brandford CA

Answer 56

1. – D a woman who carried drugs on behalf of A (her boyfriend) Defence argued that the lives of A and his family had been threatened by drug dealers, these threats were real. CA in Brandford accepted that a threat directed at A and/or family might compel D to act because they were sufficiently close, this might be so even though she was not directly aware of the threat –she heard about the threat from A. However, evidence showed that she acted out of loyalty for A rather in fear of the threat. Therefore, judge withdrew the defence from the jury.)

Question 57

Cole

Answer 57

Crime must be one identified by duressor Held not to be a duress case where moneylenders beat D and family if he did not repay him, but they did not specifically direct him to commit the offence, i.e. robbery to get the money.

Question 58

Valderrama-Vega

Answer 58

Threat must be cause (though not sole cause) of offence: 1. D subjected to a range of threats including violence and exposure of sexuality. Exposure of sexuality does not count for duress so had to be shown that threat of violence had to be in part of why he committed the offence.

Question 59

Hudson & Taylor

Answer 59

Threat must be immediate and unavoidable – two girls committed perjury in court, gave evidence saying that they could not identify the person on trial, this was not true but they had been threated, that they would be cut up if they gave truthful evidence. The man who had threatened them was sitting in public gallery watching them. CA said this was an immediate threat. CA said it is a matter of what is reasonable and not any more.

Question 60

Rahman

Answer 60

- left question to jury when D given drugs by X to sell, although afraid of X he did not sell them but did not dispose of them either. On a strict application of Hasan means that he is guilty, not selling the drugs means he had no other options. However, CA held it is reasonable not to go to the police.

Question 61

Brandford

Answer 61

CA said contrary to their view she was in fear of boyfriend and family, it was not an immediate threat, she had the chance to go to the police at the point the drugs were being prepared for deportation.

Question 62

Hasan

Answer 62

Where D believes that if he does not comply with the threat that immediate damage could occur, he should take evasive action and go to the police.

Question 63

Hasan

Answer 63

D must not be at fault in associating with the source of the duress. Use of the defence is lost if the D “voluntarily becomes, or remains, associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates” X violence criminal who Hasan had dealings with in the past. Was D’s previous association with X meant that D lost his entitlement. HL held that if D knew or ought to reasonably know that he might be the subject of compulsion by the duressor but has still voluntarily associated with him, then he cannot claim the defence.

Question 64

Ali

Answer 64

– D associated with X, he knew X carried a knife,Ali could not raise defence because he should have foreseen the compulsion as a result of getting into ;bad company’.

Question 65

Howe

Answer 65

Duress does not apply to murder because of the supreme importance that the law afords to the protection of human life.

Question 66

Wilson

Answer 66

a child, aged 13 was forced by his father to play a secondary part in a murder. Under the current law the child was guilty of murder.

Question 67

Gotts

Answer 67

exclusion of murder applies also to attempted murder

Question 68

Ness

Answer 68

Duress is available on a charge of conspiracy to murder,unlike attempt, is ‘a stage further away’ from the murder

Question 69

Willer

Answer 69

Duress of circumstances first dicussed here.

Question 70

Conway

Answer 70

Need to be a threat of death or serious injury in duress of circumstances case 2) , it is enough that D reasonably believes that the threat exists Reckless driving, Defence was that Conway believed that two men who had tried to stop his car were going to kill his passenger. In fact, they were police officers in plain clothes. = duress of circumstances

Question 71

Rodger and Rose

Answer 71

Extraneous threat D said he just had to break out of prison or he would have killed himself. Held: this cannot be duress of circumstances because he was posing the threat himself.

Question 72

Pommell

Answer 72

duress of circumstances can apply to all offences except murder/attempt . D found in best with a machine gun, possession is an offence. D said he took the gun from another man who threatened to shot the families

Question 73

Abdul-Hussain

Answer 73

¥ CA in theory said that defence could be available to hijacking an aircraft but added that threat would have to be immediate. Threat has to be immediate. Hudson v Taylor, the court was lenient about what could be called an immediate threat. HL criticised a lenient view on what constitutes immediacy.

Question 74

Quayle

Answer 74

¥ – D laid claim to a need to use cannabis for medicinal purposes. Held: not to be duress of circumstances because no extraneous threat .

Question 75

CS

Answer 75

mother tried to take child abroad, contrary to child abduction act, she said it was to prevent sexual abuse by father. Held: not duress of circumstances as there was not an immediate threat threating life and limb.

Question 76

Vantandillo

Answer 76

mother took her child, suffering from smallpox was regarded as a case of necessity, but also a life threatening emergency so it would probably be a threat of necessity.

Question 77

Southwark LBC v Williams

Answer 77

being hungry could never be a defence to a charge of theft and being homeless could never be a defence of squatting.

Question 78

F v West Berkshire AHA

Answer 78

Ð – serialisation operation was allowed for woman’s best interests. Defence of necessity.

Question 79

Dudley & Stephens

Answer 79

20 days after a shipwreck, two survivors killed and ate their weaker colleague, P, in order to survive. They were held guilty of murder. The only ‘necessity’ that could justify deliberate killing was self-defence or the prevention of crime.

Question 80

Re A (Children)

Answer 80

The separation of conjoined twins was not unlawful, even though ‘Mary’ would be killed, in circumstances where ‘Jodie’ was keeping Mary alive and without intervention both would die There are three conditions for necessity to operate as a defence: 1) the act is needed to avoid inevitable and irreparable evil, 2) no more should be done than is reasonably necessary for the purpose to be achieved, and, 3) the evil inflicted must not be disproportionate to the evil avoided. These conditions were satisfied in the instant case. The decision in R v Dudley & Stephens (endorsed by the House of Lords in R v Howe was distinguishable: that case involved the taking of an innocent life, while in the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister and who was already "designated for death". Ward - thought that Mary was killing Jodie, this killing was not unlawful. EXAMPLE - a 6 year old boy who shoots people in playgrounds is not acting unlawfully as he is too young. But in law, killing that 6 year old in self defence would be fully justified and the killing would not be unlawful. This is quasi-self defence. But Ward emphasised that this was necessary to meet the quite exceptional circumstances nature inflicted. Normally in self defence, the force used has to be unlawful. Ward LJ concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy of "sanctity of life" because of the "quasi self-defence", but Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished Dudley & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley.

Question 81

Howe

Answer 81

Defence of duress is not available to murder.

Question 82

Gotts HL

Answer 82

The House of Lords followed the obiter dicta statement from R v Howe & Bannister and held that the defence of duress was not available for attempted murder. The decision was based on the fact that it would be anomalous to allow the defence to attempted murder, which can only be established where the defendant has an intention to kill, whereas murder can be established with a lower level of mens rea since it can be committed by one who intends to cause serious injury.