WEEK 9 L2

Question 1

what is duress

Answer 1

when a defendant commits a crime because they were under pressure or threats from someone else. this defence says the defendant didn’t commit the crime willingly.

Question 2

traditional duress

Answer 2

Threats of serious injury or death from an individual (e.g., someone pointing a gun at you and threatening harm if you don’t act).

Question 3

duress of circumstance

Answer 3

: A situation where the defendant is forced to act because they believe they are in immediate danger (e.g., hijacking a plane to escape persecution).

Question 4

general principles

Answer 4

• Morally Innocent: Duress is a concession to human frailty. The law recognizes that if someone commits a crime because of threats, they might not be morally guilty.
• Prosecution’s Burden: If the defendant raises duress as a defence, the prosecution must prove beyond reasonable doubt that the accused wasn’t acting under duress.
• Duress and Murder: Duress is not a defence to murder (the law does not excuse someone for taking an innocent life, even if they were threatened).

Question 5

key cases on duress

Answer 5

4. R v. Hudson & Taylor (1971):
   o Two girls gave false evidence in court because they were threatened with violence.o The court ruled that the jury should decide if the threats were serious enough to overbear their will, even if the threats weren’t imminent.2. R v. Howe (1987):
   o Howe claimed he was forced to murder someone under duress.
   o The House of Lords ruled that duress is not a defence to murder because of the sanctity of human life.

Question 6

Irish caselaw on duress

Answer 6

1. Dunne v. DPP (2017):
   o Jonathan Dunne shot his friend after being threatened by others.
   o He claimed duress but was denied the defence for murder. The Irish courts do not allow duress as a defence for murder

Question 7

key elements of duress

Answer 7

1. Immediate Threat of Harm: The threat must be serious and imminent (could happen right away).
2. Overbearing the Will: The threat must be so overwhelming that the defendant had no real choice but to break the law.
3. No Reasonable Alternative: The defendant must have had no reasonable way out, such as asking the police for help.
4. Not Available for Murder: Duress cannot be used to justify murder. However, it can be used for other crimes.

Question 8

What is necessity

Answer 8

• Necessity is a defense when the accused is forced to break the law to avoid a greater harm. eg, A person sees a child drowning and breaks into a shop to steal a rope to save the child. The act of stealing is unlawful, but the defense argues it was necessary to prevent a greater harm (the child’s death).

Question 9

Test for necessity

Answer 9

1. The act must be done to avoid harm that would have caused serious and irreparable damage to the accused or someone they are protecting.
2. The accused must honestly believe, on reasonable grounds, that they (or someone they protect) are in immediate danger of harm.
3. The act must be proportionate to the danger. The harm done by the action must not be greater than the harm it seeks to prevent.

Question 10

case law on necessity

Answer 10

2. R v. Dudley and Stephens (1884):
   o Two men and a boy were stranded at sea and without food for days. They killed and ate the boy to survive.
   o Court rejected the defense of necessity. Even though they acted out of survival instinct, the court held that necessity doesn’t justify killing an innocent person.
3. R v. Bourne (1939):
   o A doctor performed an abortion on a 15-year-old girl who was pregnant after being raped. The doctor argued that if he didn’t perform the abortion, the girl would suffer physical and mental harm.
   o The court ruled that the doctor acted in “necessity” to prevent harm to the girl.4. AG v. X (1992):
   o A 14-year-old girl became pregnant after being raped and wanted to travel abroad for an abortion, but her parents prevented her from leaving, citing the right to life of the unborn.
   o The court focused on the rights of the unborn child and rejected the defense of necessity in this case.