W7 Defences Flashcards
What are the general defences?
Insanity
Duress by threats
Duress of circumstances/Necessity
Public and Private Defence/Self Defence
What is a defence of insanity?
A medical condition
- caused A reasoning defect which
- caused A lack of responsibility because D either
- did not understand nature/quality of their actions or
- did not know it was wrong
What is a defence of duress by threats?
1) D reasonably believes there is a threat of death/serious injury to themselves or someone they are responsible for.
2) Only commits the crime to avert the threat, in response to a demand
3) Reasonable person in same circumstances would have done the same.
What is a defence of necessity/duress by circumstance?
D reasonably believes there is a threat of danger (not from a person)
Only commits the crime to avert the threat - no reasonable evasive action available
Reasonable person in same circumstance would do the same
Operates until D (or others under threat) are clear of danger
What is a defence of self-defence/public and private defence?
D commits crime to avoid a harm being caused. Acts proportionately.
Private defence: Force used to protect D, another, or property from physical harm
Public defence: D uses force to prevent a crime or assist lawful arrest
D can be mistaken - defence still works.
Can be pre-emptive if immediate requirement to act
No duty to retreat
Authority: Criminal Justice and Immigration Act 2008
What qualifies as a threat for duress by threats?
Can come directly or via third party
D cannot be threatening themselves - e.g. Roger and Rose, suicide
Must include a threat of death or serious injury - property not enough
“Serious injury” includes GBH or rape, not ABH
Can include other types of threat alongside death/injury - Valderrama-Vega
Subjective test - D can be reasonably mistaken about threat (Safi)
Must be a present/imminent/immediate threat, with no reasonable evasive action available
Roger and Rose
Facts: D escaped from prison. Argued a defence of duress because he was having suicidal thoughts in prison. The threat of death (to himself, by himself) forced him to act. Court wasn’t persuaded.
Significance: Threatening yourself is not duress by threat.
Safi
Facts: Hijacked a plane. Claimed duress by threats as he and his family were under imminent threat from Taliban. Held that there was both and objective and subjective limb to the test - D can be reasonably mistaken.
Significance: D has to subjectively believe in the existence of the threat.
For a duress by threat defence to succeed there must be both a _______ and a ______
Threat and a demand
What are the requirements of a demand for a defence of duress by threats?
The demand must specify a criminal act, i.e.. Not a general requirement for money - Cole
Does not need to specify exact details, but does need to indicate type of crime
Cole
Facts: Cole owed money and was threatened by the loaner. Robbed two building societies to repay the debt. The demand did not specify stolen money, could have gotten money legally.
Significance: For a duress by threat defence to succeed, the demand must have included committing a crime.
Valderrama-Vega
Facts: D was threatened with violence and death plus financial loss and exposure of his sexuality.
Significance: Duress by threat defence - The physical threat can be served alongside other types of threat.
How immediate does a threat need to be for duress by threats to succeed?
Immediate or imminent - Abdul-Hussain
Effective at the moment the crime is committed - Hudson and Taylor
No evasive action D could reasonably have taken - Hasan
Abdul-Hussain
Facts: D was fleeing Iraq, hijacked a plane, fearing execution if they returned. Argued duress by threat/circumstance.
Significance: Widened the requirement of the threat from immediate to imminent
Hudson and Taylor
Facts: Two girls charged with perjury, said that before they went to court they had been threatened, and one of the threatenors had been present in the gallery when they gave their evidence. Originally ruled that since the violence couldn’t be committed in the public courtroom, it wasn’t an immediate threat. On appeal, ruled that the threat had still been present when they were on the stand.
Significance: Duress by threat - threat must be “present” when the crime is committed. Also imminence vs immediacy of threat.