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.
Hasan
Facts: D was convicted of burglary, after a drug dealer with a reputation for violence had threatened him. Drug dealer was boyfriend of D’s employer, a prostitute. Defence failed due to voluntary involvement.
Significance: Duress by threats - doesn’t work if there was evasive action that could be taken. Also not a defence in cases of voluntary involvement/prior fault.
Bowen
Facts: B convicted of obtaining services by deception. Argued duress by threat - appeal raised that D’s low intelligence quotient should be considered regarding what a person of “reasonable firmness” would do.
Significance: Some characteristics of D can be considered as part of “reasonable firmness” test for duress by threats, such as age, sex, and disability. Others such as addiction or low IQ are not.
When is duress by threat not a defence?
Murder and attempted murder
Voluntary involvement/prior fault
What is voluntary involvement/prior fault re: duress by threat?
When a reasonable person would have foreseen a risk of future coercion and voluntarily got involved anyways - Hasan
Martin (Colin)
Facts: D was a disqualified driver. His wife was suffering from a mental disorder and threatened to kill herself if he didn’t drive their son to work.
Significance: Duress by circumstances (although isn’t it also a threat?)
Re A
Facts: Doctors separating conjoined twins
Significance: Defence of necessity
When is self-defence not a defence?
1) When there was no use of force. E.g. Blake v DPP - felt pen in protest of Iraq War
2) When the violence was incited to have the guise of self-defence (Keane) or was otherwise revenge or retaliation (Bird)
3) When D was voluntarily intoxicated, leading to a mistake
What is “proportionate” re: self-defence?
Not necessary to ‘weigh to a nicety’
D did what they “honestly and instinctively thought was necessary”
Criminal Justice and Immigration Act 2008
S76 sets out self defence, public defence, private defence
Criminal Damages Act 1971
Defines criminal damage
Defines death by criminal damage
Defines defences for criminal damage
What is criminal damage?
AR:
Circumstances: belonging to another
Conduct: unlawfully Destroys or damages property
Consequences:
MR: Intention or recklessness towards above
What are the defences for criminal damage?
1) If D believed the owner would consent
2) He was protecting property belonging to himself or another and the property was in immediate need of protection, and he used reasonable means
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.
Roger and Rose
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.
Safi
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.
Cole
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.
Valderrama-Vega
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
Abdul-Hussain
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.
Hudson and Taylor
Facts: D was convicted of burglary, after a drug dealer with a reputation for violence had threatened him. Drug dealer was boyfriend of D’s employer, a prostitute. Defence failed due to voluntary involvement.
Significance: Duress by threats - doesn’t work if there was evasive action that could be taken. Also not a defence in cases of voluntary involvement/prior fault.
Hasan
Facts: B convicted of obtaining services by deception. Argued duress by threat - appeal raised that D’s low intelligence quotient should be considered regarding what a person of “reasonable firmness” would do.
Significance: Some characteristics of D can be considered as part of “reasonable firmness” test for duress by threats, such as age, sex, and disability. Others such as addiction or low IQ are not.
Bowen
Facts: D was a disqualified driver. His wife was suffering from a mental disorder and threatened to kill herself if he didn’t drive their son to work.
Significance: Duress by circumstances (although isn’t it also a threat?)
Martin (Colin)
Facts: Doctors separating conjoined twins
Significance: Defence of necessity
Re A
S76 sets out self defence, public defence, private defence
Criminal Justice and Immigration Act 2008
Defines criminal damage
Defines death by criminal damage
Defines defences for criminal damage
Criminal Damages Act 1971
