Law-defences (Unit 4)

Question 1

What are the defences?

Answer 1

Duress, duress by circumstances, intoxication and self defence/prevention of crime

Question 2

What is duress?

Answer 2

A defence based on fact that defendant has been effectively forced to commit the crime. Defendant has committed offence because he has been threatened with death/serious injury. Law therefore allows defence. Defendant has to choose between himself being killed or seriously injured, or committing a crime. In such situation there is no real choice. Defendant can be considered as so terrified that he ceases ‘ to be an independent actor’. However despite this, defendant knowingly does actus reus for offence and has required mens rea. So if law did not allow the defence, they would be liable

Question 3

How can duress exist?

Answer 3

Duress can be either through a direct threat by another (duress by threats) or external circumstances (duress of circumstances). Duress of circumstances overlaps with defence of necessity

Question 4

What crimes is duress available?

Answer 4

Duress can be used as defence to all crimes, except murder, attempted murder and possibly treason. This means duress, whether by threats or duress of circumstances, is available as a defence to all offences under Unit 4

Question 5

What is duress by threats?

Answer 5

Where another person threatens the defendant with serious violence unless the defendant commits an offence. Eg if an armed man pointed gun at defendant, gave him fake credit card, and ordered him to use it in cashpoint machine to get money. Defendant is stealing money but only because of the threat. Threat of violence is directed at defendant by another person who demands that the defendant commit a specific crime or else he will be shot

Question 6

What case sets out a two part test for duress by threats?

Answer 6

Graham. 1. Was the defendant impelled to act as he did because he feared death or serious physical injury? 2. If so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done?

Question 7

What happened in the case of Graham?

Answer 7

Defendant strangled his wife with King because he was afraid of him. Conviction upheld as threat was not sufficiently serious enough and the intoxication was irrelevant

Question 8

How serious must the threat be for duress?

Answer 8

Threat must be of death or serious injury; lesser threats do not provide a defence. However if there are lesser threats and a serious threat, the cumulative effect of threats can be considered. This was decided in Valderrama-Vega

Question 9

What happened in Valderrama-Vega?

Answer 9

Threatened with death or serious injury to self and family if he did not import drugs, and was also under financial pressure and threat of disclosure of homosexuality. Defence only succeeded due to threat to his family. The other factors alone would not have been sufficient

Question 10

What happened in Baker and Wilkins?

Answer 10

Broke down door to ex-husband’s house, believing he had abducted their child. Threat to mental health does not constitute really serious physical harm. Should also be noted from this case the threat can be made to member of defendant’s immediate family. The same applies in case of person for whose safety the defendant would reasonably regard himself responsible (Hassan)

Question 11

How must the threat and offence link?

Answer 11

Defence can only be relied on where there is connection between threats made to the accused and the offence committed in response to the threats, as seen by Cole

Question 12

What happened in Cole?

Answer 12

Robbed several building societies claiming moneylenders threatened harm to him and his girlfriend if they did not repay borrowed money. Threat related to consequences if he did not repay money he owed-not if he did not commit armed robberies

Question 13

What does the second question of the Graham two part test require?

Answer 13

Consideration of the effect of the threats on the reasonable man sharing the characteristics of the defendant (Bowen)

Question 14

What happened in the case of Bowen?

Answer 14

Low IQ and bought then resold electrical goods. Bought the goods on credit and then stopped paying the finance companies. Court decided that low IQ was not a characteristic that should be considered

Question 15

In Bowen, what characteristics did the court consider would be relevant for jury to consider when defence of duress is raised?

Answer 15

Age and sex, physical disability, pregnancy, mental illness/psychiatric disorder. They regarded low intelligence and the fact the defendant may be timid or more vulnerable to threats than an ordinary person as irrelevant

Question 16

What is the effect of intoxication in duress?

Answer 16

If defendant becomes voluntarily intoxicated and mistakenly believes he is being threatened, he cannot use duress as a defence. A mistake in these circumstances is unreasonable. However, if there is no mistake and the intoxication is irrelevant to the duress, the defendant can use the defence of duress

Question 17

How does the immediacy of threat and possible escape affect duress?

Answer 17

Defence of duress can only be used where there was no safe means of escape and therefore no way of avoiding threat other than to carry it out. Case for this is Gill, Hudson and Taylor and Abdul-Hussain

Question 18

What happened in the case of Gill?

Answer 18

Defendant told to steal employers lorry or there would be violence. Lack of immediacy as there was sufficient time between threat and crime commission to go to police

Question 19

What does immediacy mean?

Answer 19

Defendant can only successfully plead the defence if threat was operating on his mind at the time he committed the offence. A threat can be considered to be imminent even if it cannot be carried out at the time of the crime

Question 20

What happened in Hudson and Taylor?

Answer 20

Committed perjury as they were threatened by the original defendant and saw him in the public gallery of the court when giving evidence against him. Threat could not have been carried out whilst in the court, however it was still an imminent threat that could have taken place outside of the court

Question 21

What happened in Abdul-Hussain?

Answer 21

Hijacked aeroplane to avoid danger for them if the plane had landed in Jordan. Threat need not be immediate, but had to be imminent in the sense that it was hanging over them

Question 22

What cases demonstrate self-induced duress?

Answer 22

Sharp, Shepherd, and Hasan

Question 23

What happened in Sharp?

Answer 23

Defendant joined a violent gang but claimed he wanted to leave before the last robbery. Duress not allowed as he knew the gang was violent before joining so could not use duress when they eventually threatened him with violence

Question 24

What happened in Shepherd?

Answer 24

Defendant joined a non-violent organised gang but was threatened with violence when he wanted to leave. Conviction quashed as he did not know the gang was likely to use violence

Question 25

What happened in Hasan?

Answer 25

Associated with violent drug dealer who told defendant to burgle a house or he and his family would be harmed. Duress is excluded where defendant voluntarily associates with others who engage in criminal activity

Question 26

What is duress of circumstances?

Answer 26

While duress of threats has been around as a defence for a long time it is only recently that the courts have recognised that a defendant may be forced to act because of surrounding circumstances. The first case in which this was recognised was Willer

Question 27

What happened in the case of Willer?

Answer 27

Defendant and passenger drove down narrow alley when car was surrounded by gang of youths who threatened them. He drove on pavement slowly and carefully to escape then went straight to the police to report it but was convicted of reckless driving. Court of Appeal said jury should have been allowed to consider whether the defendant drove ‘under the form of compulsion’-under duress. This was confirmed in Conway

Question 28

What happened in Conway?

Answer 28

Passenger in defendants car had been shot at by two men a few weeks prior to the incident. Car was stationary when passenger saw two men running towards car and thought they were after him so yelled at defendant to drive off, which he did very fast and charged with reckless driving. Judge refused to leave duress to jury so defendant convicted. Court of Appeal quashed the conviction and ruled duress of circumstances was available if, on an objective standpoint, the defendant was acting in order to avoid a threat of death or serious injury

Question 29

What happened in the case of Martin?

Answer 29

Defendant was disqualified from driving but wife became hysterical and threatened suicide if he did not drive their son to work who was late and risked losing his job. He was convicted of driving while disqualified. Court of Appeal ruled duress of circumstances should be available as a defence and the same two stage test put forward in Graham for duress by threats was applied

Question 30

What did the case of Pommell make clear?

Answer 30

It made it clear that the defence of duress of circumstance could be available to all offences other than murder

Question 31

What happened in the case of Pommell?

Answer 31

Defendant found in bed with loaded machine gun, and claimed he had taken it off another man to prevent him using it and was going to take it to the police in the morning. Court of Appeal held the defence of duress of circumstances was available for all offences except murder/attempted murder/treason

Question 32

What is intoxication?

Answer 32

The law on intoxication as a defence is set out in Unit 3. Points made in that section apply to offences in Unit 4. It is only a defence to specific intent offences. It is not available for basic intent offences where the defendant can be guilty if he is reckless. This means it can be used for all unit 4 offences except criminal damage which is basic intent. It is also only a defence if it means the defendant did not have the required mens rea for the offence. Intoxication is only a defence if defendant does not know what he is doing and so is not dishonest

Question 33

What is self-defence/prevision of crime?

Answer 33

Defence is set out in unit 3. Points made in that section also apply to unit 4. Unlike, intoxication, this defence can also be used for criminal damage where other elements required for the defence are satisfied