necessity defences and duress Flashcards
Necessity Defences
Self defence/ Prevention of crime
Duress by threat
Duress by circumstance
2 points (as clarified by s.76 Criminal Justice and Immigration Act 2008):
The necessity of force
The reasonableness of force
Criminal Law Act s.3
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Necessity of force
Force is not justified unless it is necessary
It will be necessary if it is seen to be so in the circumstances
the defence still works even if..
the attack has not taken place, so long as it is imminent. In other words the defendant can get the first blow in.
However, in such situations it is difficult to establish the reasonableness of the force. However, it is clear that the D need not retreat as far as possible before using force
Reasonableness of force- the jury will consider
The jury will consider:
The facts as D believed them
The circumstances of the attack
The time D had available to decide on a course of action
The risk to D balanced against the risk of harm to the victim.
Where the force is excessive it will be unlawful.
s.76(5)
D cannot rely on mistaken belief caused by voluntary intoxication.
s.76(6) Criminal Justice and Immigration Act 2008
Actions are not deemed to be reasonable in the circumstances as he believed them to be if they are disproportionate in those circumstances.
Duress occurs when
Duress occurs when someone is forced to perform a criminal act. There are 2 situations this can arise:
Duress by threats; and
Duress by circumstances
Duress can apply to any offence except murder.
Duress by Threat test
Test set out in Graham (1982) as follows:
Was D compelled to act as he did because he feared death or serious physical injury?
If so, did he respond as a sober person of reasonable firmness, sharing the characteristics of the D would have done?
issues with duress (1)
The nature of the threat – “death or serious injury”
Unclear what serious injury is but:
-Psychological harm will not do
-Severe pain will be insufficient
-Threat can be to D or an immediate family member or a person for whose safety the D could reasonably regard themselves as responsible
issues with duress (2)
The threat must be made in connection with the offence committed.
Issues with duress (3)
Characteristics of the defendant
IQ not relevant unless it is a mental impairment.
Being pliable, vulnerable, timid are not relevant
Characteristics due to self induced abuse such as alcohol or drugs
Characteristics which may be relevant when considering provocation because they relate to the nature of the provocation will not necessarily relate to duress e.g. homosexuals
Following ok:
Age and Gender
Physical Health or disability
A category of person the jury may feel are less able to resist pressure than people not within that category.
Mental illness, impairment or psychiatric condition provided persons suffering from these conditions may be more susceptible to pressure.
The effect of intoxication on duress
intoxication is self induced it will not be relevant to Duress. If involuntary then it may be argued that they were more susceptible to threats. However, consider Kingston.
If both intoxication and duress seem relevant talk about both!
Can only plead duress if…
Can only plead duress if the threat was operating on his mind at the time of the offence and he feared death or serious harm would occur immediately if he did not commit the crime.
