Lecture 10 - general defences - necessity and duress

Question 1

what is duress

Answer 1

duress is when a defendant commits an offence because either the situation or someone else compels them to do so to avoid serious personal harm. it is a complete defence

Question 2

what are the situations where duress cannot be used

Answer 2

murder cases (R v Howe) and attempted murder (r v gotts)

Question 3

in what situations will duress be allowed when there is a threat

Answer 3

threats of death or serious personal harm to d or their loved ones will do however threats of damage to property or the exposure of private information will not suffice

Question 4

what is the significance of r v cole 1994

Answer 4

highlights the need for a casual link between the threat and the offence i.e the duressor must state the offence the defendant has to do

Question 5

what is the significance of r v hudson and taylor 1971

Answer 5

sets out the rule that if the accused couldve escaped or taken other action to avoid the threat but failed to do so they cannot use the defence of duress

Question 6

What is the significance of R v Howe

Answer 6

sets out the two stage test for the courts
1- did the defendant act because he was threatened with death or serious injury and had a good cause to believe these threats would be carried out
2- would a sober person of reasonable firmness with the defendants characteristics and in the same position have responded in the same way ?

Question 7

what is the rule for voluntary association with criminals in the r v hasan case ?

Answer 7

this case states that duress will not be available in cases where the defendant has put himself in a position in which he might be pressurised into offending

Question 8

what is the significance of r v willer 1986

Answer 8

the conviction was quashed due to the defence of duress of circumstances i.e willer was threatened by the situation and did what he did to avoid harm

Question 9

what are the three elements to necessity as brought up in the r v shayler case

Answer 9

1. the act must be done to prevent an act of greater evil
2. the evil must be directed towards a person for whom the situation makes the defendant responsible
3. the act must be reasonable and proportionate to the evil avoided

Question 10

is there a defence of necessity

Answer 10

tradiitonally judges wouldnt allow the defence of necessity as shown in the r v dudley and stephens but they are increasingly willing to recognise it. this is mainly seem in medical law as shown in the re a children case 2001

Question 11

is there a defence of necessity

Answer 11

tradiitonally judges wouldnt allow the defence of necessity as shown in the r v dudley and stephens but they are increasingly willing to recognise it. this is mainly seem in medical law as shown in the re a children case 2001