General Defences Flashcards
Hasan
HL
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.
A
The judge held that the requirement of threat of death or serious injury would ‘no doubt’ be satisfied by a threat to rape.
Hasan, Graham and Conway
HL
All required a threat of death or serious personal injury.
Rodger and Rose
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.
Quayle
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 .
Safi and others
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.
Conway
Threats against whom?
Threat against a passenger was sufficient to raise the defence
Martin
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.
Hasan
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.
Ghaham correct direction
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.
Which cases confirmed Graham?
HL in Hasan and HL in Howe.
W Wilson believed:
CRITIC
D should be judged on the basis of what he honestly believed and what he genuinely feared. The Graham authority is too strict.
Bowen
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.
Emery
It was said OBITER, that it would be right
Ali
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?
Hasan - per Baroness Hale.
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.
What did Reed say about duress and murder?
“it is inapt to demand heroism as a pre-requisite for exculpation”.
He is saying that the criminal law should not require heroism
Law commission and duress and murder
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.
Beckford v R
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.
Gladstone Williams
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.
Hasan
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.
Gladstone Williams
As long as a belief it reasonably held, its unreasonableness is unimportant. Subjective test.
Oye
Insanity cannot generate a defence
R v Yaman
CA
‘Section 76 makes it clear that the trigger for using force is assessed subjectively and the defendant’s response is to be assessed objectively.
R v Scarlett
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.
R (Collins) v Sec St
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’
Martin (Anthony)
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.
Press &Thompson
CA
The courts when looking at whether force was reasonable will not look at whether D was suffering from PTSD.
R v Bird
There is no duty to retreat in every case as this places to great a burden.
R (Collins) v Secretary of State
‘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.
Beckford v R
You can pre-emptively strike in self defence.
Devlin v Armstrong [
You can pre-emptively strike in self defence.
the anticipated attack must be imminent”
