duress by circumstances Flashcards
circumstances dictate the crime rather than a person
circumstances dictate the crime rather than the a person
there must be a circumstance which makes D feel there is likelihood of death or serious injury
criteria
> was it reasonable for D to act in this way?
The two part Graham test must be satisfied
if there is a safe avenue of escape then it must be pursued
there must be a connection between the crime and the circumstance
Defence will usually fail if D is associated with a gang
not applicable to murder
R v Willer
D and passenger were driving in a narrow alley way when they were surrounded by a gang of youths, the only way to get away was driving on the pavement.
jury should be allowed to consider whether the D drove ‘‘under that form of compulsion, that is, under duress’’
R v Conway
passenger in Ds car had been shot at by two men a few weeks earlier so when the passenger saw two men running towards the care sped off. the two men were actually undercover police.
judge refused to leave duress to jury.
Duress of circumstance was available if, on an objective standpoint, the D was acting to avoid a threat of death or serious injury.
R v Martin - two part test must be satisfied
- D acted reasonably and proportionately to avoid a threat of death or serious harm, and
- the two part Graham test applies
R v Pommell
found at 8 am by the police lying next to s loaded machine gun. he stated he’d taken it from another man who was going to use it to harm others. he stated he intended on handing it in to the police in the morning.
Defence of duress of circumstances was available for all offences except murder and attempted murder
> conviction quashed and sent to retrial
R v Cairns
V threw himself across the bonnet of Ds car. several of Vs friends were shouting and D felt threatened. He drove off and V fell under the car and was seriously injures. the friends were only trying to rip.
he reasonably perceived a threat of serious physical injury or death
R v Abdul Hussain - defence may be used for any offence which is an appropriate response to danger posed by the circumstance
D had fled to Sudan from Iraq because of risk of execution due to their religion. They feared they’d be sent back to Iraq so hijacked a plane. they pleaded duress
judge stated the danger was not sufficiently ‘close and immediate’ as to give rise to ‘virtually spontaneous reaction’ and that duress couldn’t be considered.
C of A - THREAT NEED NOT BE IMMEDIATE, BUT IT HAD TO BE IMMINENT IN THE SENSE IT WAS HANGING OVER THEM.
NECESSITY
must be circumstances which force a person to act in order to prevent even worse evil from occurring.
defence is similar to DOC
R v Dudley and Stevens
defence of necessity first arrived in this case. Put forward by shipwrecked sailors who ate the cabin boy to survive and had been charged with murder.
Re A (conjoined twins)
doctors sought a declaration that it would be lawful for them to operate to separate the twins, although this would cause one of them to die.
Defence of necessity was available, even to a potential charge of murder
R v Shayler
tests of duress of circumstances/or necessity were;
> act must be to prevent a greater evil
>act must be directed towards the D or a person/persons for whom they were responsible
> reasonable and proportionate to the evil avoided
