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Flashcards in Defences of Justification Deck (46):


deals with cases in whichh D's behaviour fulfills the conduct element and the positive fault requirements of an offence, but in which D acted in rsponse to threats from another person (duress per minas) or inorder to ave dire consequences- duress of circumstnace.


Preliminary points

-restrictive approach in law
-Burden of proof on prosecutors
-CA developed d of c around 1980's
- not avalable as defence for murder,attempted murder or treason- Howe


Duress by threats:

2 part test set out
->(Lynch) was D or may he have been compelled to act as he did out of fear of death or serious injury. fear caused by what he reasonably believed K had said or done.
-> (Graham)the threats must be such that 'a sober person of reasonable firmness' would not have resisted them.


Graham [1982]

lived w/ wife and homeosexual lover K. K put electric cable round wife's neck and told Graham to pull.Graham argued his compliance w/ K's instruction out of fear


Valderrama- Vega [1985]

Threat of death or serious physical injury. D committed an offence following the exert of 3 types of pressure on him (Financial) pressures, threats to reveal the fact that he was homosexual, threats of death or serious injury). CA: if the threats of death or serious injury were substantial then the defence of duress would be available. Not in regard too financial pressure or reputation.


Reasonable Bravery

Howe and another [1987]

Confirmed Graham. H involved in attacks on men that caused their death. They claimed they did so out of fear of the a man who was long crim record and understood that he would kill them if not. Lord Hailsham: wrong to suggest ".. that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own."
-> The more exteme the crime demanded , the higher the level of resistance should be.


Characteristics required in determining reasonable bravery

Bowen [1997]- Told his family would be petrol bombed if he didnt't help K. B had low IQ(very gullible held: low intelligence not relevant in determining bravery. Sex & age are, Also pregnancy, physical disability or certain recognised psychiatric conditions like PTSD. Concer D's firmnesss of character and ability to resist, also their perceptionof the threat to them.


Shayler [2001]

Threat need not be addresed to D personally 'threat towards somebody for whom he reasonably regarded himself as being responsible'


Hassan [2005]-

Point on the threat being present
Threats of duress of circumstancecs subject to dctrine of prior fault.

Duty to take evasive action particularly where the threat 'is not such that D reasonably expects to follow immediately or almost immediately on his failure to comply with the threat.'
Lord Bingham held: should be objective test , based on the foreseeability of violence being threatened by people with whom D was associating and not requiring foresight of coercion to commit crimes of a particular kind.


Graham [1982]

The test is OBJECTIVE. Not based on facts as D believed them to be.
test: whether, as a result of what D REASONABLY believed the duressor had said or done.


Sharp (1987)

Threats of duress of circumstancecs subject to dctrine of prior fault.

Subjective test

D joined gang of robbers and when he threatened to withdraw he was threatned w/ violence. CA: Duress unavailable to anyone who voluntary joins a gang 'which he knows might bring pressure on him to commit an offence and was an active member when he was put under such pressure.
supported by Lady hales in Hasan


Duress after Hassan

- Modern statement of law on duress
-objective approach for policy reasons
-High standard of bravery expected
-Should more allowance for individual characters be made?


Duress of Circumstance

duress jury q

Willer [1986] Charged w/ reckless driving. Argued he did so to escape gang, he felt would attack. Defence should hae been left to the jury but it was conviction unsafe.


Martin [1989]

Defendant drove his vehicle while disqualified to take son to work. He did so because his wife threatened suicide if he didnt.
held: "Defence can arise from other objective dangers threatning the accused or others." "still must be threat of death or serious injury"- confirmed in Hasan


Quayle (Barry [2005]

Possesed cannabis and argued he was using it to prevent pain. He argued it was internal duress-For policy reasosn courts did not allow the argument so circumstances do not include internal pressures.


Duress of circumstances distinguished from duress by threats

- Both defences require some external danger to D
-In duress per minas- typically a threat intended by the threatner to coerce d in commiting particular offence
-in circumstances, D responds to the threat by an offence of D's choosing.


Impact of threat

Vvalderrama Vega- Immaterial if threat of violence is not sole cause for commision of offence, but it must be one. Also it must influence D, if D would have done it anyways the defence is not available.


Distinguish Duress of C from necessity

Pommel found w/ firearm, argued duress by circumstance as he had took it of x who was going to shoot some geezer.

Duress:threat danger to life
->Necessity balancing of evils
->Duress is an excuse, necessity a justification
->Duress considers D's charteristics.
->Duress limited defence, necessity applesto all crimes but is eceptional in common law


Mistaken Duress

Mistaken duress no defence as the test is objective not subjective


Commentary on Mistaken Duress

- vagueness on the area as safi and Martin seem to indicate the possiblity. However obiter in Hasan on the objectivity of Duress seems to settle the matter.


Self defence and permissible force

- Use of reasonable force tto defend against an attack or prevent a crime eit will be permissible, not unlawful.
- Prosecutor must prove force used by D was unlawful
-balancing competing rights and interest between 'defender' and agressor' or criminal'


Section 3 of the Criminal LawAct 1967

statees that'a person may use such force as is reasonable in the circumstances in the prevention of crime"
- large overlap w/ common law. Still governed by common law if statute does not apply, coexist to cover parts outside prevention of crime.
- Generally speaking this provision covers defence of persons and property.


Section 76 Crimnal Justice and Immigration

intneded to clarify the operation of existing defences (s.76(9)),, notably self defence. Clarification means common law not abolished but new provisions will superseded common law. Stated in s. 76(2)


Ammendments in S. 76 OF the Criminal justice and immigration Act 2008

S.(3) Question on degree of force being reasonable is subjective test.
s.5 D cannot rely on mistaken belief attributable to VI
S.5A In householder case, degree of forcce used has to be reasonable and if its grossly disproportionate then the test becomes objective.
->Result of public pressure
->Does this mean, you can use disproportionate force as long as its not grossly so.


Significance of s.76

Drane [2008]- Objective test on a subjective element.
Yaman [2010]- mistake made on the nature of the reasonableforce case.
-> Omerod- indicates that this shows limits on the usefulness of s.76.


Self defence has two elements:

Neccesity and Proportionality



Rashford [2005]- D charged w/murder evidence showed that he and the deceased had disagreement and he enacted revengescrimage ensued then D stabed V. CA: Self D should not be ruled just bcus D was inital aggressor. If V's response to D's aggresion was out of all proportion, ,, D would be justified in using sufficient force to protect himself.


Harvey [2009]

Confirms Rashford priciple, unless D had intended to provoke V into attacking him,in order to then use fatal force on V, self defence would become unaivalable.


Keane [2010]

confirms that if it'san orinary fight V reesponse is proportional then D has no access to self defence.


Jones [2007]

D & others charged w/ crim damage & argued that crim damage was use of reasonable force to prevent a crime ( being commision



Was D acting in the face of an unjustified threat from the victim?

-need to know or believe there is a justified threat(fact needed to constitute permission)

Dadson (1850) - armed police constable shot person he saw running out of woods. Turns out V was stealing wood(felony, allowing high level of force to be used in capturing escaping felons). however when constable shot man, he was unaware that V was felon, the basic fact needed to constitute permission and so could not raise defence


Duty to avoid conflict?

Julien [1969]

D injured someone by throwing a milk bottle at thier head. argued:self defence, the v was holding an axe.held that to rely on SD , D must show unwilling ness to fogih ''to temporize and disengage and perhaps to make some physical withdrawal.'


Duty to avoid conflict?

Bird [1985]

not demonstrating unwillingness to fight does not necessarily hurt self-defense plea.


Freedom of Movement
Field [1972]

D warned that men were coming to attack him.D stayed put, men found him and attacked In fray D stabbed one of them fatally. CA: No duty to avoid conflict until his attackers were present and had started to threaten him.


Pre-emptive strike

A-G's reference No 2 OF 1983- Shop keeper kept petrol bombs to defend his store from rioters. Argued: self-D, ca: use of force in Self-D and prevention of crime justifiable as a pre-emptive strike as well as for present and past threats.
Subject to duty to avoid conflict.- Ashworth. Horder- believes inconsistent w/ duty of avoidance.


Reasonable force

- proportionate to threat
Force take to mean any violence D has resorted to and covers such conduct as breaking wndows or battering doew of a dor. WIll not cover any acts that lack violence of percussive character. (Blake( 1993))


S & S Commentary

Comment that requirement of percussive character is problematic as conduct otherwise criminal but not involvign force should not lead to liability if it was a reasonable measure to prevent the commsion of crime.


Reasonable force a question of fact

- Jury q. advissed that reasonableness be judged on braos and liberal grounds.
Objective and subjective element
Was the force reassonable from the perspective of the defendant.


A-G for NI's Reference (No 1 of 1975)

Soldier shot someone dead believing them to be member of IRA.
-Jury to consider how the circumstances in which the accused had to make his decision whether or not to use force and the shortness of time availabelt o him for reflection, might affect the judgement of the reasonable man..'


Owino [1996]

D charged w/ S.47 OAPA against his wife. argued: self defence. - The jury has to decide whether in the circumstances existing at the time, the force was reasonable. D's view of the amount of force that was reasonable is not deteminative.


Commentary by C. Newman (2008)

S.5 of 76 appears to say anything that is not grossly disproportionate force will be reasonable


Mistaken Belief as to necccesity

A person who purports to use justifiable force should be judged on the facts as he or she believed them to be -- Martin [2002]


Martin [2002]

D shot at 2 burglars, one in the back as he was trying to escape. held: could not consider his depression and eccentricity in seeing if it was reasonable force as he believed it to be.


Effects of the Defence

-if reasonable force, necessary and proportionate, even if ther eis a mistaken element the defence is complete
-> if force was necessary but excessive then the defence fails and D is convicted of murdr
-->>palmer v The queen [1971] affirms this.
-->>Possibility of partial defenceunder loss of control rules under Coroners justice Act.


Killing under Article 2

The strasbourg court insists actions of thos who take life should be judged on basis of the facts as they honestly believed, for good reason, to exist.(includes mistakes)

->Objective test. Places high value on right of life to require police offers to have adequate factual foundations fo rtheir beliefs before using lethal force in consequence.


Killing under Article 2

ECHR requirees absolute necessity test, howeve in Mcann it was found that in principle the reasonable force test was not incompatible with the absolute necessity test.
s. 76 is broader than Art 2.