Defences II Flashcards
(49 cards)
What are the second type of defences? And what type of defences are they?
- Duress
- Necessity
- Self-defence
Complete defences
Duress
D commits a crime because they are coerced to do so by another
Necessity
D commits a crime in choosing the “lesser of two evil”
A decision has to be made
Self-Defence
D commits a crime of force to repel an unjusitfied attack against, self, other, property
Shared structure of complete defence?
- Threat of harm (almost exclusively, imminent harm)
- D acts to prevent harm
- Doing so involves comitting a criminal offence
Defence to meet individual burden (and prove D meets all elements)
Is Duress available for murder?
- Duress unavailable for murder (Howe)
D alleged that they committed murder as they feared M would kill them if they did not
“D ought rather to die himself” Blackstone
Is Duress available for attempted murder?
(Gotts [1992])
D’s father 16 ordered by father to kill mother otherwise the father would shoot him.
(Charged with attempted murder)
What are the two types of duress and what are the corresponding tests?
1.) Duress of Threats - Threat to kill or cause serious harm to D, or to someone close to him
2. Duress of Circumstance - D commits offence. Threat was nature of the situation but not an actual person [R v Conway].
So there is an external cause in Duress of Circumstances
R v Conway
Sets out the legal precedent of Duress
Defence of/duress of circumstances = Defendant or someone else is under a threat of death or serious injury
Can you give an example of Duress of Threats
Threats issued from a wrongdoer, ‘do this or else’
DPP v Lynch [1975]
Example Cases of Duress of Circumstance
- **Willer ** - D drove car over pavement to escape a gang of youths
- **Conway ** - D driven car at high speed to escape two men intended to attack passanger (they were police)
* Quayle - Failed. D produced cannabis to reliev pain from MS - not imminent
Eleements of Duress
1.) D reasonably believes threat of death or serious injury
2.) Threat made to D or (immediate family) or (someone close who D would reasonably assume responsibility)
3). D’s perception of threat and conduct = objective (reasonable)
4.) Conduct directly caused by threat
5.) No evasive action could reasonably taken
6..) D cannot rely on threats, to which he exposed himself to
7.) Unavailable to murder + attempted murder
Hasan (2005)
Element 1 of Duress, explain example cases of what threat means
1.) Must be of death or serious harm
- **R v Singh [1973] **threat to expose adultery = (NO)
2.) Threat must be immediate
- Willler - immediate threat of GBH avoided (swerving onto the pavement)
D reasonably believes a threat of death or serious injury
Can threat of D come from self?
According to element 1 of Duress
-** Duress and necessity** only available where external
Purely internal emotions and impulses are insufficient.
Rodger and Rose [1998] - D’s escaped from prison after becoming of risk to themselves
Element 2 of Duress
-** Martin (Colin)** - Threat of death can come from someone’s mental health (no external cause)
- Wright 2000 - Duress can be executed by someone close to you
**
- Shayler** - If threat is vague, or the victims are unknown it does not count
Threat made to D or someone else close/responsible for
6.) D cannot rely on threats, to which he exposed himself to
- Threat cannot arise out of D’s own voluntary exposure to risk of complusion
1. Hasan [2005]: D associated with violent drug dealer -> Compelled to commit a burglary
2. Ali [2008] Involved in Drug dealing (and became indebt to supplier) -> Had to commit a robbery
Cannot be voluntary exposed
Element of Duress (Criminal conduct directly caused by threat)
** Criminal conduct directly caused by threat**
The threat doesn’t need to specify the exact crime (e.g., robbing a building society).
As long as the crime is a reasonable response to the threat, duress can be a valid defense.
- Here Loan shark threatened him and gf unless he repaid money, he robbed several buildings - but did not matter. Loanshark did not ask him to rob a bank
Cole [1994]
3rd Element of Duress: Must be reasonable to commit crime in the circumstances
(Objective test)
**- Graham (1981) Would a reasonable person in D’s situation have acted the same way?
1.) Was D compelled to act because of threats (real or perceived)?
2.Would a sober person of reasonable firmness, sharing D’s characteristics, have given in to the threat too?
( for example an unloaded gun pointed to D counts)
5.) No evasive action could reasonably taken
- Are there other non-criminal options?
- Imminence of the threat is the “cardinal feature”
- Therefore if you continue to commit an act past the threat you cannot blame the threat
(It is time limited as to when the threat is recieved)
Bowen
-** Bowen - ** tailored to include characteristics affecting bravery
1.) Age
2.) Gender
3.) Intelligence etc:
4.) Physical Disability or Characteristics
5.) Pregnancy
6.) Mental illness
The Bowen case tells us which characteristics we can include in judging
Four circumstances in which necessity might arise?
The offence is committed to
- The public interest (public necessity)
- D’s interests (private necessity)
- V’s interests (Re F)
- Interests of another
What question do necessity impose?
Is it permissible to break the law where doing so would serve a greater good? Where chooding the “lesser of two evils”
Necessity: Concerns with using this?
Lord Denning in Southwark LBC
- If hunger were allowed to be an excuse for stealing no ones house could be safe
- Floodgates concern
