Duress and Necessity Flashcards
(45 cards)
What is duress?
When the D is faced with a choice of 2 evils, they either have to commit a crime or incur even more unpleasant conseqeunces
What are the 2 types of duress?
Duress by threats, duress by circumstances
What is duress by threats?
Where D is forced to commit a crime due to threats by a person or circumstances, he shows he committed the actus reus but says mens rea was formed because he had no effective choice
What must the threat of duress be?
Threat of death or serious injury, nothing else will sufice. However, this is not needed in necessity defence
What is the defence recognised as?
“a concession to human frailty” R V HOWE 1989
What does a successful plea of duress lead too?
An acquittal
When is duress by threats only available?
When the D commits the offence that was ordered by the threat. In R v Cole 1994 D robbed building societies to repay debt as his family was being threatened, defence denied as he was not told to rob anywhere
What were the early cases of duress of circumstances and give 3 examples?…
Driving cases, this has been recognised by the courts since the 1980’s…
R v Willer 1986 - surrounded by threatening youths in car, drove on pavement to escape, defence allowed
R v Conway 1988 - Drove car at high speed to escape when he thought 2 men were going to attack his passenger
R v Martin 1989 - D was disqualified from driving but wife threatened to commit suicide if he didnt drive her son to work, defence allowed
Which case stated duress of circumstances is not limited to driving offences?
R v Pommell 1995 - removed gun from man who visited him in the night saying he was going to kill someone, fell asleep with it and police raided house, said he was going to hand it in to police in the morning, defence allowed
What can duress not be a defence too?
Murder or attempted murder, however in Re A 2000 necessity may be allowed as a defence to murder
What is the principle that’s different between duress and necessity?
Duress - threat must be imminent
Necessity - matter of ‘necessity not emergency’
Also in duress focus on the D’s condition (Graham test) but in necessity focuses on balancing evils
What case was duress originally allowed for murder?
Lynch v DPP for Northern Ireland 1975 “the greater the crime the greater the degree of pressure must be” - but later principle was overruled in Howe 1987
What cases seems quite harsh that the defence of duress is not allowed for murder or attempted murder?
R v Wilson 2007 - D was 13 and forced by father to murder their neighbout using several weapons, threatened with violence otherwise, defence failed
R v Gotts 1992 - 16 year old D threatened with violence by father unless he killed his mother, stabbed her and convicted of attempted murder
How many principles are there for the defence of duress?
6
What is the first principle on the defence of duress?
Must be a threat of death or serious injury - R v Hasan 2005 confirmed threat must be very serious
Threat to damage or destroy property is insufficient - Lynch v DPP “the law must draw a line somewhere and the law draws it between treats to property and threats to the person”
Threats to reveal D’s sexual tendencies or financial position are insufficient - R v Valderamma-Vega 1985 received threats of death, exposure of homosexuality and unrevealed debts, the last 2 alone would mean defence would fail but also had a death threat so didnt
What is the second principle on the defence of duress?
Threat must be made to the defendant or to others
R v Ortiz 1986 - threats to family allowed defence
R v Willer 1986 and R v Conway 1988 - to friends
R v Wright 2000 - to boyfriend, first denied as boyfriend was not ‘sufficiently proximate’ but later allowed on appeal
R v Shayler 2001 - threats allowed to complete strangers ‘to some other person or persons for whom he has responsibility or persons for whom the situation makes him responsible’
What is the third principle on the defence of duress?
Threat must be immediate
R v Hudson and Taylor 1971 - if they did not lie in court they would be cut up after, COA said threat was hanging over them at time of offence and this is enough
R v Hasan 2005 - D must believe threat is immediate or almost immediate
What is the fourth principle on the defence of duress?
Where the D has an opportunity to seek police protection the defence will be denied
D is expected to take any reasonable opportunity yo avoid committing the crime - R v Gill 1963, wife threatened with violence if he did not steal a lorry, defence denied as he could have had time to inform police
R v Pommell 1995 - delay of a few hours was not excessive and D also offered acceptable explanation for the delay in handing in the firearm to police
R v Hudson and Taylor 1971 - courts realised police may not always be able to provide effective protection
What is the fifth principle in the defence of duress?
Where D voluntarily engages in criminal association the defence will be denied
R v Fitzpatrick 1977 - no defence as voluntarily joined RIA
R v Shepherd 1987 - gang of teenage shoplifters, tried to give up but family threatened, defence allowed but COA allowed appeal as they considered whether this D would have expected this level of violence when joining, answer was no so appeal allowed
R v Hasan 2005 - prostitutes driver threatened by violent boyfriend to carry out a burgulary
R v Ali 2008 - forced salesman out car at knifepoint as friend threatened him with violence if he didn’t rob the car, defence denied as ‘voluntarily been friends with violent man for many years’
What is the sixth principle in the defence of duress?
The test for duress; The Graham Test
R v Graham 1982 - love triangle with homosexual partner and wife, lover was jealous tied wire around wifes neck and got D to pull other end, she died, convicted of murder, he argued he was scared of lover, defence failed due to 2nd part of the test;
1 - subjective test, concentrates on D’s beliefs, what did D reasonably believe and did he have good cause to fear that if he did not act as he did it would result in death or serious injury to him or another?
R v Safi and Others 2004 - belief must be reasonable
2 - objective test, would a sober person of reasonable firmness sharing the same characteristics as the D have responded in the same way to the threats?
R v Bowen 1996 (68 year old man with low IQ forced to carry out 5 counts of obtaining property by deception, held Iq was not to be a relevant characteristic as not part of ability to resist pressure and threats) - these could be some characteristics to consider; age, pregnancy, serious physical disability, mental illness
What characteristics will not be relevant in the Graham test?
Self-induced ones - such as drugs, alcohol and glue-sniffing
R v Flatt 1996 - addicted to cocaine and in debt to supplier, threatened by supplier, defence denied
What is the main limitation on the defence of duress?
It is not realistic - refusing duress to a murder charge is very harsh (R v Wilson 2007), should we realistically expect someone to sacrifice their own life rather than take another? Unrealistic to expect such a degree of heroism
What is harsh about the objective elements of the defence?
In R v Hasan the courts took a stance on making the defence unavailable to those with criminal connections, however judging their acts on this from an outsiders perspective may be too harsh, the principle is unacceptably wide
What is strange about the defence allowing convictions for s.18 GBH with intent but not for murder?
The mens rea is identical, should be none or both allowed
