Paper 1.16 - Necessity and Duress

Question 1

Does necessity come from common or statutory law?

Answer 1

Common law.

Question 2

Who is the defence of necessity intended for?

Answer 2

People who commit a crime to prevent a worse evil.

Question 3

What happened in the case of Bourne, a case study of the defence of necessity?

Answer 3

Doctor carried out an illegal abortion to save a mother’s life, and was awarded the defence.

Question 4

The case of Dudley and Stephens presents a limit to the defence of necessity; what is it?

Answer 4

No defence for murder (Ds ate a cabin boy because of shipwreck).

Question 5

The case of Quayle presents a limit to the defence of necessity; what is it?

Answer 5

It is never necessary to take illegal drugs (D took cannabis to cure his back pain).

Question 6

The case of Buckoke presented a limit to the defence of necessity until 1988; what was it and what changed it?

Answer 6

Emergency services were not entitled to the defence of necessity when breaking traffic laws getting to emergencies. This was overturned in the Road Traffic Act 1988.

Question 7

The case of Cichon presents a limit to the defence of necessity; what is it?

Answer 7

Even if D’s actions saves a life, it can still be illegal (D removed his dog’s muzzle as it was choking on its own vomit).

Question 8

Necessity is most commonly used in medical cases in modern times. Name a case study of a medical case where necessity was used.

Answer 8

Re S
Doctor performed a C-section against the wishes of the mother to save the baby’s life.
Re F
Health authority applied for permission to sterilise a mentally ill patient who formed a relationship with another patient.
Also Re A.

Question 9

The defence of necessity is usually not applicable to murder. Name the only exception to this rule.

Answer 9

Re A - conjoined twins.
Doctors were permitted to separate conjoined twins in order to save one of their lives, even though the weaker twin was ‘murdered’.
The treatment must be proportionate to the offence.

Question 10

Is duress by threats a full or a partial defence?

Answer 10

Full defence, results in an acquittal.

Question 11

Who is the burden of proof on in the defence of duress by threats?

Answer 11

Prosecution, beyond reasonable doubt.

Question 12

Who is the defence of duress by threats intended for?

Answer 12

People who are forced to commit crimes due to threats by others.

Question 13

The case of AG Whelan commented on the level of threat required to successfully claim the defence of duress by threats. What did it say?

Answer 13

“Threats of immediate death or serious personal violence are so great that they overbear the ordinary powers of human resistance.”

Question 14

What are the 6 elements of duress by threats?

Answer 14

1. Who is the threat to?
2. Is it serious?
3. Is there a connection between crime and threat?
4. Is it immediate?
5. Does it satisfy the Graham test?
6. Are there limiting factors?

Question 15

When using the defence of duress by threats, who can the threat be to?

Answer 15

D or others, not property or animals.

Question 16

In duress by threats, a threat has to be made against d or others. What is meant by others and which case defines this?

Answer 16

Others means people close to d in proximity or relation.

Wright
D and her boyfriend had been threatened, CA awarded the defence despite not being family.

Question 17

In duress by threats, what constitutes a serious threat?

Answer 17

The threat must be of death or serious injury and must physical.

Question 18

In Valderama-Vega, the threat to D was not serious enough to constitute duress by threats. What happened in this case?

Answer 18

D was threatened to import cocaine illegally. His blackmailers threatened to expose D’s homosexuality and inflict harm on his family. CA upheld D’s conviction (as although there was threats of violence) the main sticking point was D’s homosexuality.

Question 19

In duress by threats, there must be a nexus (connection) between the threat and the crime. What is the case study of this?

Answer 19

Cole
D was threatened to get money for his debts. D did two robberies to get the money. Although d was under duress, they had not told him to rob the banks, so D was convicted.

Question 20

In duress by threats, the threat must be immediate. What is the case study of this?

Answer 20

Hudson and Taylor
Two Ds, girls, committed perjury due to threats made by another. However, CA stated that police protection would not have been effective because of the threat’s imminent nature, they were awarded the defence.

Abdul-Hussain
Ds hijacked a plane because they believed they would be executed if they got to Iraq. CA quashed convictions as the threats were immediate under the Smith definition.
ALSO Hasan.

Question 21

In terms of duress by threats, what happened in the case of Graham?

Answer 21

D held the wire to kill his wife under the instruction of K, due to threats made against him. His conviction was upheld.

Question 22

In terms of duress by threats, what is the 2 part Graham test?

Answer 22

Subjective - Did d act because he feared death or serious injury?
Objective - Would a sober person of reasonable firmness with d’s characteristics have acted in the same way?

Question 23

The duress by threats Graham test mentions how “d’s characteristics” are relevant. According to Bowen, what 5 five characteristics are relevant?

Answer 23

Age.
Pregnancy.
Serious physical injury / disability.
Recognised illness.
Gender.

Question 24

What are the two limitations to the defence of duress by threats?

Answer 24

Self-induced duress is likely to spoil the defence eg joining a gang.
No defence to murder or attempted murder.

Question 25

In duress by threats, D has no defence if he foresees or should foresee that there is a risk of threat. What case decides this?

Answer 25

Hasan or Sharp.

Question 26

In Shepherd, D joins a gang of non violent shoplifters. When he attempts to leave, he is threatened with violence. Was D awarded the defence of duress by threats for his shopliftings following his attempt at leaving?

Answer 26

Yes; D had no knowledge that the gang would use violence.

Question 27

What two cases decided that duress by threats is not applicable to murder and attempted murder respectively?

Answer 27

Howe (binding for murder, persuasive for attempted) and Gotts (binding for attempted murder).

Question 28

Is duress of circumstances a full or a partial defence?

Answer 28

Full defence, resulting in an acquittal.

Question 29

What cases confirmed the defence of duress of circumstances?

Answer 29

Willer
Conway

Question 30

Duress of circumstances was mentioned in Willer. What were the facts of this case?

Answer 30

D was in his car surrounded by 20-30 youths, threatening to kill him and his passenger. CA quashed conviction as D drove recklessly ‘under that form of compulsion, that is, under duress.’

Question 31

Duress of circumstances was confirmed in Conway. What were the facts of this case?

Answer 31

A passenger in D’s car mistook a pair of men for a pair that had assaulted him previously. The passenger yelled at D to drive, forcing him to drive recklessly. CA quashed D’s conviction, establishing duress of circumstances.

Question 32

In duress of circumstances, the Graham test is also relevant. Which case decided this?

Answer 32

Martin
D drove while suspended as his wife threatened to commit suicide unless D drove her son to work. CA overturned the conviction, citing the fact D’s actions passed the Graham test.

Question 33

In the case of Pommell, various limits to the duress of circumstances defence were established. Name them.

Answer 33

Defence not available to murder, attempted murder or treason.
Defence could apply to all offences, not just driving ones.
If there is a delay for D stopping his crime, he will be less likely to get the defence.

Question 34

In duress of circumstances, the case of Baxter and Wilkins is one example of the defence’s limits. Name the limit exceeded in the case.

Answer 34

Threat must be of imminent death or serious injury, not psychological harm.
(D broke down V’s door because she heard her and V’s child crying.)

Question 35

In Shayler, D exposed MI5 secrets, against the Official Secrets Act to ‘protect the public’. Why was D rejected the defence of duress of circumstances?

Answer 35

D failed to identify who the threat was to; the word ‘public’ was deemed too vague.