Duress by threats, Duress by circumstances and Self Defence

Question 1

what type of defence is duress by threats

Answer 1

excusatory defence

Question 2

what is duress by threats

Answer 2

There was a reason for the D’s actions – even though we do not agree with the conduct, we understand the reasoning

D was forced by someone else to break the law, because a failure to do so would lead to harm to someone else

D must be reasonably believed that they (or another) were threatened with death or serious injury

The response would be something that a reasonable person would do, must show reasonable steadfastness

Question 3

what type of offence is duress by threats

Answer 3

common law offence and remains uncodified

Question 4

what will duress by threats not be a defence to

Answer 4

murder, attempted murder, treason offences

Question 5

three main issues in threat and demand

Answer 5

The content of the threat
Who made the threat?
The content of the demand

Question 6

A-G v Whelan (1934) - duress by threats

Answer 6

“…threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance e should be accepted as a justification for acts which would otherwise be criminal.”

Question 7

Hasan 2005 - content of the threat

Answer 7

The threat must concern death or serious personal injury – if it isn’t one of these, even if it is far higher than the offence being asked of D

Question 8

consent of the threat

Answer 8

Duress is not a balancing of evils defence

GBH and above appears to be the threshold, although rape will also be considered to be allowed

Question 9

Safi (2003)

Answer 9

Court revealed there was no need for there to be objective evidence of a threat, as long as the D reasonably believed it to exist

Question 10

does the threat need to exist?

Answer 10

Duress can be based upon a mistaken belief – but the belief must be reasonable, and this is an objective test

Does raise issues regarding consistency regarding self defence

Question 11

who made the threat?

Answer 11

Threats need not directly be spoken from X, they can come from a third party – but the law stipulates they must be external from D

Duress is focussed on human frailty, but not individual frailty

Question 12

who is the threat aimed at?

Answer 12

The issue of who the threat is aimed at is contentious as it effectively asks, who we should care for

Previous cases have demonstrated that the class of people may be wider than expected including, family, friends, colleagues and even strangers

Question 13

content of the demand

Answer 13

The purest form is where X makes an explicit demand, but it may end up being vague or implicit

X must specify a crime as without that, the defence is far harder to prove

Question 14

Ali (1995) - content of the demand

Answer 14

X must give indication of the type of crime that is to be committed but there is no need for intricate specifics

Question 15

D’s response to the effect

Answer 15

Duress will only apply when it was the qualifying threat that was the thing that made the D offend

Imminence is important
- Did D have time to escape without offending?

Does D have an effective means of escape?

If D could escape and avoid offending, then Duress is increasingly unlikely

Question 16

fortitude from D

Answer 16

The D should display reasonable steadfastness in resisting the threat and demand from X

The threat may be real, but a reasonable person would not have been tested by it

Question 17

exceptions

Answer 17

Bowen (1996)
- When someone may not be able to hold the same standard

D’s age, sex, pregnancy, serious psychical disability, recognised mental illness or condition

The test then shifts to a reasonable and sober person with these characteristics

Question 18

limitations of the defence

Answer 18

murder
- Not available as est in R v Howe (1987) if commited as either a principle or accomplice

Attempted murder
- Not available as est in R v Gotts (1992) – it is pure chance an attempted murderer isn’t a murderer

Question 19

duress of circumstances

Answer 19

an extension of Duress by threats

where there is no specific threat or demands, but the circumstances D finds themselves in create an overbearing of D’s will

Question 20

Willer (1986)

Answer 20

D drove his car slowly on a pavement to avoid a group of youths who were intent on causing serious harm, D charged with reckless driving and tried to raise necessity

CoA declared it was a defence of duress and not one of necessary

Question 21

Conway (1989)

Answer 21

Confirmed the defence of duress by circumstances and set out three key elements which are crucial in succeeding in the defence

D drove dangerously in order to avoid assailants, whom he believed were intent on killing his passenger

Question 22

what are the three elements of Duress of Circumstances

Answer 22

1. No defence to murder, attempted murder, certain treason offences and not in circumstances of prior fault
2. D must reasonably believe that the circumstances posed a threat of death or SI which compelled them to commit the offence
3. D must show reasonable steadfastness in response to the threat

Question 23

self defence

Answer 23

Called public and private defence

Gives complete defence to any charge where D uses otherwise unlawful force to protect either public or private interests

Now considered to be just one defence that covers both interests

Question 24

where and what can you self-defend?

Answer 24

You are capable of using reasonable force to

1. Defend himself from an attack
2. Prevent an attack on another person
3. Defend his property

Question 25

S3 (1) Criminal Law Act 1967

Answer 25

”A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders por of persons unlawfully at large.:”

Question 26

reasonable force

Answer 26

Law allows for only reasonable force to be used in the circumstances

Reasonableness is judges in the light of the circumstances

Question 27

what two tests look at reasonableness

Answer 27

Subjective: did the D believe the force they used was reasonable? To just use this would be inappropriate – what is the D thought shooting someone for being pushed was fair

Objective: what would a reasonable person believe would be appropriate?

Question 28

reasonable force combined test

Answer 28

Was the degree of force D used objectively reasonable based on the subjective facts as D believed them to be?

Question 29

R v Owino (1995)

Answer 29

True rule is that a person may use such force as it objectively reasonable in the circumstances as he subjectively believes them to be

Question 30

duty to retreat

Answer 30

Not necessary to demonstrate that you had an unwillingness to fight – there are times at which the defendant might reasonably react immediately

Down to the Jury to decide whether the D acted reasonably in standing his ground or whether a reasonable man would have taken the option to run away

Question 31

imminence of the attack

Answer 31

Isn’t necessary that the defendant be attacked first

Lord Griffith in Beckford (1988)
- “circumstances may justify a pre-emptive strike”

Question 32

defence of property

Answer 32

It can rarely be reasonable to use deadly force to protect their property

Only reasonable and reactive force which can be used, you cannot shoot a burglar just for being within your property – but you can if you fear for your life

Forrester (1992)
- Trespasser themselves can plead self-defence if the occupier of the house uses excessive force