necessity- duress Flashcards
how does common law define duress?
Common law states that any adult that is of sound mind is responsible for their own behaviour
Unless…… the defendant is forced to do something against their will. They may be due to threats made against them.
It is for the prosecution to prove that the defendant was not acting under duress
This is a common law defence and will result in a not guilty verdict. It is not available for the following offences:
Murder
Attempted murder
Possibly treason
R v Howe (1987)
With others, D took part in torturing and abusing a man who was then strangled by one of the others. On a second occasion another man was tortured, abused and then strangled by D. D claimed that he took part in the killings because of threats that had been made against him. The trial judge ruled that duress was available to D for the first killing where D was a secondary party to the killing, but that it was not available for the second killing where D had carried out the killing. The House of Lords decided that duress was not available as a defence in either case.
Lord Hailsham said:
I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest … that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.
how is duress used as a defence for murder?
In R v Wilson (2007) COA confirmed this rule still applies to young people (Wilson was 13).
They did admit there might be grounds for criticising the law as the child was frightened and doing what his father told him to do.
The Obiter comment in R v Howe, that the defence should not be available for murder was confirmed in R v Gotts (1992) by COA.
The Obiter of R v Howe also discussed inconceivable situations like a motorist being hijacked and forced to act as a getaway driver and committing murder.
It also fails to cover situations like terrorists hijacking a mother’s car and threatening to kill her children if she doesn’t help them plant a bomb.
R v Gotts
The appellant, a 16 year old boy, was ordered by his father to kill his mother otherwise the father would shoot him. He stabbed his mother causing serious injuries but she survived. He was charged with attempted murder and the trial judge ruled that the defence of duress was not available to him. He pleaded guilty and then appealed the judge’s ruling.
Held:
The appeal was dismissed and his conviction upheld.
The House of Lords followed the obiter dicta statement fromR v Howe & Bannisterand held that the defence of duress was not available for attempted murder.
The decision was based on the fact that it would be anomalous to allow the defence to attempted murder, which can only be established where the defendant has an intention to kill, whereas murder can be established with a lower level ofmens reasince it can be committed by one who intends to cause serious injury.
how does the judge have discretion in sentencing by using duress
However, the defence is available for s18 GBH, where the MR is intent to commit murder.
This also allows the judge some discretion in sentencing, as a murder charge carries a mandatory sentence. Attempted murder charges can take duress into account when fixing the tariff.
The judge used this discretion in R v Gotts- probation.
R v Hasan (2005)
The appellant worked for a woman, Claire Taeger, who ran an escort agency involving prostitution. He would drive women to clients and act as a minder. Taeger then became involved with another man, Frank Sullivan, who was a violent drug dealer. Sullivan took over much of the appellant’s work and friction developed between the two. The appellant was aware that Sullivan was a dangerous man and Sullivan had boasted to the appellant about three murders he had recently committed. One night Sullivan and another man known only as “Lunatic Yardie” ambushed the appellant outside his home. Sullivan told him to commit a burglary on a house owned by one of Taeger’s Tclients. He told him that “Lunatic Yardie” would accompany him to ensure that the burglary was carried out and threatened that if he did not do so he and his family would be harmed. The appellant complied and was convicted of aggravated burglary his defence of duress was rejected by the jury. He appealed to the Court of Appeal contending a mis-direction in two respects:
1.The trial judge had stated that the jury should find him guilty and reject the defence of duressif they were sure that he could have avoided acting as he did without harm coming to his family.
2.The trial judge had not directed the jury in line withR v Baker & Wardas to whether the defendant had foreseen that he was likely to be subjected to threats to commit a crime of the type for which he was charged.
The Court of Appeal allowed the appeal and quashed his conviction. The facts did not suggest that the defendant could have taken evasive action and therefore there was no need to direct the jury on this point. The failure to direct in relation to foresight of the type of crime also amounted to amis-direction. The Crown appealed to the Lords.
House of Lords Held:
The appeal was allowed and his conviction was re-instated.
There was no mis-direction on the issue of evasive action. The issue was properly put to the jury and should not be subsumed within the application of the Graham test. There was no requirement that the defendant foresaw that type of crime that he may be compelled to commit.
What is the test of duress using R v Hasan?
- There must be a threat to cause death or serious injury.
- The threat must be directed against the defendant or his or her immediate family or someone close to him or her.
- Whether the defendant acted reasonably in the light of the threats will be judged objectively.
- The threats relate directly to the crime committed by the defendant
- There was no evasive action the defendant could have taken.
- The defendant cannot use the defence if he or she has voluntarily laid him- or herself open to the threats.
- The threat
The threat needs to be of death or serious injury. It may include other threats and the court will consider the cumulative effect of the threats.
R v Valderrama-Vega (1985)
The defendant illegally imported cocaine. He claimed he had done this because of death threats made by a mafia-type organisation involved in drug-smuggling and also because of threats to disclose his homosexuality and because of financial pressures. The trial judge said that the defence was only available to him if the death threats were the sole reason for his committing the offence. The Court of Appeal quashed his conviction as the jury was entitled to look at the cumulative effects of all the threats made against him.
If there had not been a threat of death, then the other threats in this case would not be enough on which to base a defence of duress. But as there had been a threat of death, the jury was entitled to consider all the threats.
R v Valderrama-Vega (1985)
R v Valderrama-Vega (1985)
The defendant illegally imported cocaine. He claimed he had done this because of death threats made by a mafia-type organisation involved in drug-smuggling and also because of threats to disclose his homosexuality and because of financial pressures. The trial judge said that the defence was only available to him if the death threats were the sole reason for his committing the offence. The Court of Appeal quashed his conviction as the jury was entitled to look at the cumulative effects of all the threats made against him.
If there had not been a threat of death, then the other threats in this case would not be enough on which to base a defence of duress. But as there had been a threat of death, the jury was entitled to consider all the threats.
R v Hudson and Taylor (1971)
- Threat
The threat must be active at the time the crime is committed
However, the threats may not be carried out immediately
R v Hudson and Taylor (1971)
The defence was not available during a perjury trial as the threat was not able to be put into effect while the girls were giving evidence.
The COA stated that the threat had be ‘present’ and the defence is available if the threat is hanging over the defendant.
- Who is being threatened?
The defendant
His or her immediate family
Someone close to him or her
A person for whose safety the defendant would reasonably regard him or her responsible.
who can use the defence?
A parent whose children are threatened?
A police officer when the public is threatened.
A police office when the person in front of them is threatened.
Someone whose dog is threatened.
A teacher whose students are threatened whilst in school.
A shopkeeper whose customers are threatened.
- Did the defendant act reasonably?
Was the defendant compelled to act as he or she did because he or she reasonably believed he or she had good cause to fear serious injury or death? The defendant must genuinely believe in the effectiveness of the threat
Would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way?
The jury can take into consideration certain characteristics decided in R v Bowen (1996)- the defendant had an IQ of 68 and obtained goods by deception to make petrol bombs when his family was threatened by two men. The characteristics considered must go to the ability to resist threats. This was laid down in R v Graham, approved in Howe and again in Hasan.
what characteristics were set out in Bowen?
Age
Pregnancy
Serious physical disability
Recognised mental illness or psychiatric disorder
Gender (although the COA thought that many women might have as much moral courage as men)
R v Bowen (1995)
the defendant had an IQ of 68 and obtained goods by deception to make petrol bombs when his family was threatened by two men. The characteristics considered must go to the ability to resist threats. This was laid down in R v Graham, approved in Howe and again in Hasan.
- Do the threats relate to the crime? R v Cole
R v Cole (1994)
D claimed that he and his girlfriend and child had been threatened (and he had been actually hit with a baseball bat) in order to make him repay money he owed. As he did not have the money, D carried out two robberies at building societies to get sufficient money to repay the debt. D said he only did this because of the threats of violence to him and his family.
His conviction was upheld because he had not been told to commit the robberies. The threats to him were directed at getting repayment and not directed at making him commit a robbery. This meant there was not a sufficient connection between the threats and the crimes he committed, so the defence of duress was not available.
