Defences (Duress & Necessity)

Question 1

What are the two forms of Duress?

Answer 1

Duress by Threats

Duress of circumstances

Question 2

What does the D need for Duress?

Answer 2

Actus Reus and Men’s Rea

Question 3

Attorney General V Whelan 1934

What did this case outline duress as?

Answer 3

“Threats of immediate death or serious personal violence so great as to overhear the ordinary powers of human resistance should be accepted as justification for acts which would otherwise be criminal”

Question 4

Duress By Threats

What are the key elements that outlines Duress by Threats?

Hint:

(Lord Bingham)

(R V Hassan)

Answer 4

threat of death or serious injury

To D or someone close to him

D’s belief in the threat and response to it must be reasonable

D’s crimes must have been directly caused by the threat

There was no evasive action D could reasonably take

Not if self-Induced

No defence to murder, attempted murder or treason

Question 5

1) Threat of death or serious Injury

Answer 5

R V Aikens

Not a threat to punch the D

DPP V Lynch

Not towards property

Question 6

2) To D or someone close to him

Answer 6

R V Hasan 2005

Lord Bingham:

The threat must be “Directed against the defendant or his immediate family or someone close to him or for whom he is responsible for”

Question 7

2) To D or someone close to him

Lord Bingham:

The threat must be “Directed against the defendant or his immediate family or someone close to him or for whom he is responsible for”

Answer 7

R V Hurley and Murray (1967)

Threats to kill or seriously injure D’s girlfriend amounted to duress

R V Shayler (2001):

D can be responsible towards another person even if there is no previous connection with them

For example:

D is told to commit a crime or a bomb will be set off, harming others

Question 8

3) D’s belief in the threat and response to it must be reasonable

The objective test set out in R V Graham; approved in R V Hassan

Answer 8

Did the D Reasonably believe In the circumstances of the threat?

Was the D’s belief a good cause for his fear?

Was his response one that might have been expected of a Sober person of reasonable firmness?

Question 9

3) D’s belief in the threat and response to it must be reasonable

R V Graham 1982 legal principle?

Answer 9

A person under duress must show:

“The steadfastness reasonably to be expected of the ordinary citizen in his situation”

Question 10

(4) D’s crime must have been directly caused by the threat

R V Cole

Answer 10

D was in debt to two money leaders who had threatened him and hit him with a baseball bat as he owed them £3,500

D Robbed two building societies to get the money

Held:

D could not rely on duress as the threat was not made specifically to get D to commit the robberies

Question 11

(4) D’s crime must have been directly caused by the threat

R V Valderrama-Vega (1985)

Answer 11

D was under financial pressure and had been threatened with being “outed” as gay.

He had also been threatened with death and serious injury.

Held:

The threat of death or serious injury need not be the only cause of D’s conduct, as long as the jury are satisfied he would not have acted “but for” those threats

Question 12

(4) D’s crime must have been directly caused by the threat

Summarised

Answer 12

The D would not commit the crime “But for” D’s threats

The threat was made in order to make the defendant commit a particular crime

R V Cole

R V Valderrama-vega

Question 13

5) There was no evasive action D Could reasonably take

Answer 13

The threat must still be effective at the time of the offence

R V Hurst 1994

“The accused must know or believe that the threat is one which will be carried out immediately or before the accused or other person threatened can obtain official protection”

Question 14

5) There was no evasive action D Could reasonably take

R V Abdul-Hussain (1999)

Answer 14

Six Iraqis had fled from Saddam Hussein’s regime to the Sudan.

They were terrified of being returned to Iraq to face torture and punishment.

They boarded a plan to Jordan and hijacked it when over Egyptian airspace using fake grenades, forcing the pilot to fly to London

Held:

The judge should have left duress to the jury;

Duress did not require a “Virtually spontaneous” reaction if the threat was “imminent”.

Question 15

5) There was no evasive action D Could reasonably take

R V Hasan 2005

Answer 15

D had committed burglary.

He claimed another man would harm him and his family If he did not do it.

Lord Bingham:

“The threat must be an immediate one that D Cannot avoid.

Immediacy is the “Cardinal feature” of the defence”

Question 16

5) There was no evasive action D Could reasonably take

R V Hasan 2005

Lord Bingham:

“The threat must be an immediate one that D Cannot avoid.

Immediacy is the “Cardinal feature” of the defence

What does this mean?

Answer 16

If there was a delay of a day between the threat with being shot and a crime, this is not duress

Furthermore Lord Bingham stated:

‘D’s belief as to the immediacy of the threat must be reasonable”

Question 17

5) There was no evasive action D Could reasonably take

R v Hudson 2005

Answer 17

Two girls were prosecution witnesses.

They gave false evidence and were charged with perjury.

They claimed duress as a gang had threatened them with serious injury if they told the truth.

A gang member was in the public gallery when they gave evidence.

Held:

Duress was allowed even though the girls could have put themselves under the Courts protection

This was because the protection of the police would not have been effective

The threat was no less effective when it could be carried out the same night, even if not “immediate”

Question 18

5) There was no evasive action D Could reasonably take

(Summarised)

Answer 18

Effect must be immediate, can be so if reporting to the police would make no difference

R V Hasan

R V Hudson

Question 19

6) Not if self-induced

R V Sharp (1987)

Answer 19

D cannot rely on threats which he has voluntarily laid himself open to

D was part of a conspiracy to rob.

When he saw his co-conspirators armed with guns, he said he wanted out of the plan

One of the co-conspirator threatened to kill him if he did not go ahead

During the robber the same person killed the V, and D was charged with manslaughter

Held:

D could not rely on duress as he had brought the situation on himself, and his conviction was upheld

Question 20

6) Not if self-induced

R V Ali 2008

Answer 20

If D ought reasonably to have know that joining the gang might subject him to threats of violence, he cannot rely on duress as a defence

Question 21

6) Not if self-induced

R v Shepard (1987)

Answer 21

D joined a gang of shoplifters but wanted to give up after his first time.

He raised the issue of duress when charged with a subsequent burglary with the gang.

Held:

If the gang D joins is not overtly violent, the defence of duress should be left to the jury to consider

Question 22

6) Not if self-induced

Summarised

Answer 22

Duress self-induced, D cannot use it as a defence

R V Sharp

R V Ali

May not be the case if the “gang is not overly violent” (R V Shepherd)

Question 23

7) No defence to murder, Attempted murder or treason

Answer 23

Abbott V R

Question 24

Duress of circumstances

Answer 24

Occurs when:

“The situation forces D to commit a crime”

R V Willer 1996

D drove his car slowly on a pavement to escape from a gang of youths who were set on attacking him and his passengers

D was charged with reckless driving and convicted after the trail judge refused to leave duress to the jury

Held:

This issue of duress should have been left to the jury

Question 25

Duress of circumstances

Occurs when:

“The situation forces D to commit a crime”

(R V Conway 1989)

Answer 25

D’s passengers had been targeted the previous week.

Another person was shot during the incident

Two men came running towards the defendant’s car.

the passenger shouted “drive off!” hysterically

D, fearing for his passengers life drove off recklessly, pursued by the other two men, who were actually plain clothes police, in the car

Held:

D’s convictions for reckless driving were quashed.

Duress should have been left to the jury

Question 26

Duress of circumstances Occurs when:

“The situation forces D to commit a crime”

(R V Quayle 2005)

Answer 26

Could duress of circumstances be claimed by growers if cannabis where there genuinely needed it to relieve pain from a Pre-existing medical condition?

Held:
There must be imminent danger of physical injury in order to claim duress of circumstances. Merely avoiding the pain was not enough

Question 27

Duress of circumstances Occurs when:

“The situation forces D to commit a crime”

(R V Pommell 1995)

Answer 27

D was found in bed with a gun. He claimed duress of circumstances as he had taken the gun from a man who was threatening to use it.

Held: This was duress of circumstances as the situation forced him to be in possession of a weapon

Duress of circumstances is governed by the same principles as duress by threats

Question 28

“same principles as duress by threats”

what does this actually mean?

Answer 28

That duress by circumstances uses the exact processes as duress by threats

Question 29

Duress of Circumstances

The situation forces D to commit a crime (Summary)

Answer 29

The situation forces the D to commit a crime and there must be an imminent danger of physical injury and the same stages as duress by threats apply

Question 30

Duress

Burden Of Proof and Outcome

Answer 30

If D provides evidence of Duress, the Prosecution must disprove it.

Either type of Duress established, the Defendant will be acquitted

Question 31

What is meant by Necessity?

Answer 31

D has no choice but to commit the crime

To achieve the lesser of two evils

Question 32

What is the difference between Necessity and Duress?

Answer 32

Necessity doesn’t require the Defendant to be threatened to perform the crime

Question 33

Necessity

What did Lord Golf state in the case law off R V Bournewood NHS Trust 1998 about Necessity?

Answer 33

Lord Golf:
“The defence of necessity was relevant where a mentally ill person was detained despite the lack of a legal basis to do so”

Question 34

Necessity

Mouse’s Case (1608)

Answer 34

Necessity allowed a prisoner to leave a burning gaol (Jail) even though this was forbidden by Statute

Question 35

Necessity

Re A (2000)

Answer 35

The medical evidence was that if conjoined twins were left together, both would die; if separated, one would live but the consequence would be the death of the other. The hospital treating the twins went to court for a declaration that it was lawful to operate in order to separate them.

Held: The operation would be lawful due to Necessity, it was a matter of a choosing the lesser of two evils, and so Necessity applied.

Question 36

Necessity

Re A (2000)

The court stated Necessity will only succeed where:

Answer 36

The act was necessary to avoid an inevitable evil; and

The evil inflicted was not disproportionate to the evil avoided

Question 37

Necessity Summary

Answer 37

D has no choice but to commit the crime to achieve the lesser of the two evils

Re A

Where act necessary to avoid inevitable evil, and evil inflicted is not disproportionate to the evil avoided

Necessity is available for murder

Question 38

Necessity Outcome

Answer 38

If established, Necessity results in full acquittal

Question 39

Disclaimer

Answer 39

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