mock defences Flashcards
what are the types of duress
threat, necessity, circumstance
AG v Whelan
duress by threat is threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance
what is duress not a defence to
murder or attempted murder
which cases show the limitations of duress
murder -Howe
attempted murder - Gotts
Graham
test for duress -
1 - was D compelled to act as he did because he reasonably feared serious injury or death
2- if so, did he respond as a sober person of reasonable firms sharing the characteristics of the defendant would have done
hasan
belief in threat must be genuine and reasonable
why was the defence of duress denied in velderrama Vega
threat was not serious enough
can you use duress if the threat is to someone else? which cases show examples of this?
yes, if it is someone you’re responsible for
Martin - his wife
Comway - passengers
what did the draft criminal code say
cannot use duress if threat is to a stranger
Bowen
gave characteristics which may reduce ability to withstand threat: - age -pregnancy -sex recognised psychiatric condition -disability
when can intoxication make you more susceptible to threats? which cases say this?
only when it is involuntary - cases = graham and Bowen
gill
can’t use duress if there is a safe means of escape
Hudson and Taylor
threat must be imminent but not immediate
Hasan (limitations of duress)
disproved Hudson and Taylor - said immediacy is a requirement
Cole
threat must relate to offence - threat wasn’t if he didn’t;t rob bank it was if he didn’t get the money
Sharp
threat was self induced as joined a violent gang - couldn’t use duress
Shepherd
could use duress as gang was non-violent
Hasan (self-induced threat)
could use defence if in a gang if:
1) did not foresee they might use threats to make him commit an offence
2) reasonable person would not have foreseen this either
what is duress by circumstance
defendant is in a situation where he believes that he, or those with him would suffer death or serious injury if he did not escape by doing what he did
Willer
established duress by circumstance, car surrounded by threatening people - drove on pavement to get away
Roger
duress by circumstance - must be external
Martin (duress)
criteria for circumstance:
- must be acting reasonable and proportionately to avoid threat/ serious injury
+ criteria from Graham
- compelled to act as he did for serious threat of injury or death
-responded as a sober person to reasonable firmness sharing the characteristics of d would have done?
Conway
duress by circumstance - D’s behaviour must be objectively reasonable and proportionate to the level of threat that D thought he was in - for jury to decide
Cairns (duress)
doesn’t have to be real threat as long as d reasonably perceived it to be real - circumstance
what did Lord Hailsham say about duress not being available for murder?
a person should be a hero and lose their own life rather than take another
what did Lord Griffiths say about duress not being available for murder?
the CPS probably wouldn’t prosecute in this circumstance as it wouldn’t be in the public interest
why may it be considered unfair that duress is allowed for GBH and not for murder
murder has a similar mens rea to GBH (vickers - serious harm rule) so may seem inconsistent
what did the law commission suggest about the defence of duress in 1993 and 2006
allowing defence for murder
why does the objective test from graham seem unjust
low IQ or vulnerability are not characteristics that can be taken into account in the test from Bowen - D who accedes to a threat because they failed to understand the truth should be allowed duress
why is the precedent from Hasan considered unjust
changed law from Hudson and Taylor so violence must be immediate - those who are unable to speak out will not be allowed the defence
what are the two issues to consider in consent?
is it something for which consent is a defence?
is the consent valid?
when is consent not a defence
offences above battery
pretty
consent is no defence to murder
wilson v pringle
automatically give implied consent to everyday touching - this can be withdrawn
A-G ref. No.6 of 1980
consent is not available for offence above a battery
brown
exceptions to A-G ref rule:
- properly conducted games and sports
- medical procedures
- cosmetic enhancement
- horseplay
- dangerous exhibitions
Barnes
conduct in games and sports need to be sufficiently grave in order to not allow consent
A-G ref no.6 (games and sports)
consent not allowed in games and sports that aren’t properly conducted -= e.g. street fighting
wilson
branding is considered cosmetic enhancement
jones
‘rough and undisciplined horseplay’ - d didn’t intend harm and genuinely believed there was consent