Duress and Neccesity Flashcards
(10 cards)
Introduce
Duress
Howe, Gotts
Apart of Duress
- D claims they are forced to act due to threat of death or serious injury.
- Full defence
Gotts - Duress not available for attempted murder. Howe - Duress not available for murder.
Explain
The test for Duress by Threats
Hasan - 6 Part test
Apart of Duress test
Hasan - 1) Threat of death or serious injury 2) Must be directed to D or another 3) D must act reasonably in light of threat 4) There must be a direct link between threat and crime 5) There must be no safe avenue of escape 6) The threat is not self-induced
Explain
Threat of Death or Serious Injury
Vladerrama-Vega
Apart of Duress test.
- D must recieve a threat that makes them commit the crime.
Vladerrama-Vega - Duress only available if death threats sole reason for offence, if there is lesser threats then jury looks a cummultative effect.
Explain
Threat must be directed to D or another
Ortiz
Apart of Duress Test
Ortiz - The threat must be directed towards D, a member of their immediate family, or close to them.
Explain
D must Act Reasonably in Light of Threat
Graham - Two Part Test, Bowen
Apart of Duress Test
Graham - 1) Was the D compelled to act as they did, as they reasonably believed the threat of death or serious injury. 2) Would a sober reasonable person of firmness, with same or similar characteristics to D, react the same way? Bowen - Age, pregnancy, serious disorders, medical illnesses, gender can be taken into account.
Explain
There must be a direct link between threat and crime.
Cole
Apart of Duress Test
- The threat must be on a specific offence that D must committ.
Cole - There must be a direct link between the threat and D's crime
Explain
There must be no safe avenue of escape
Hasan
Apart of Duress test
- Must be immediate with no way to escape.
Hasan - If opportunity to go to police safely arises and D didn't take it, then defence fails
Explain
The threat is not self induced
Hasan
Apart of Duress Test
- Fails if D brought it upon themselves.
Hasan - Duress unavailable, D needed to forsee risk of threat of violence through associating himself with criminals.
Apply to an Exam Question
Flip
Apart of Duress
What crime did D commit? Is duress available for this type of offence?
1
What was D threatened with if they did not act? Was it death or serious injury? Was it an accumulation of threats?
2
Who was the threat directed towards?
3
Graham Test Stage 1 – Was the D compelled to act as they did because they thought their life, or someone they were responsible for, was in danger?
Graham Test Stage 2 – Would a sober person of reasonable firmness sharing D’s characteristics have responded in the same way following the threat? (Relevant characteristics: Age, pregnancy, serious physical disability, recognised medical illness or psychiatric disorder, gender. Not low IQ!)
4
Was there a sufficient link between the threat and the crime D committed?
What was the timing of the threat? Was the threat immediate or almost immediate?
5
Did D have a safe avenue of escape? Why/why not?
Was there a specific link between the threats & the crime D committed?
6
(If applicable only!) Did D associate themselves with a violent/known criminal/gang?
Explain
Necessity
Dudley v Stephens - Three part test, Re A, Shayler
Dudley v Stephens - 1) The act must only be done to prevent greater good. 2) The evil must be directed towards D or person responsible for 3) That act must be proportional or reasonable to evil avoided. Re A - Necessity can be a defence to murder Shayler - Duress and Necessity are exactly the same
