Duress & necessity Flashcards
Hasan (also known as Z) [2005] UKHL 22
the nature of duress - a complete defence
As an application, see Mullaly [2006] EWHC 3448 (Admin) : driving while intoxicated to escape some threat and when the police arrived, D kept driving although the threat had vanished
Appeal dismissed, the defence of duress did not apply
- Duress is no defence to murder, attempted murder and some forms of treason
- There must be a threat of death or serious injury
- Made to D or his immediate family or someone close to him, or someone for whom D would reasonably regard himself as responsible at [21] per Lord Bingham.
[21] The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take.
[27]… [Hudson and Taylor] was described by Professor Glanville Williams… as ‘an indulgent decision’, and it has in my opinion had the unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress.
Defence excluded for voluntary association by Bingham LJ [39] … the defence of duress is excluded when as a result of the accused’s voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.
but Lady Hale dissents [77] *It is one thing to deny the defence to people who choose to… join criminal gangs… It is another thing to deny it to someone who has a quite different reason for becoming associated with the duressor and then finds it difficult to escape+
summarised the test for duress
D was associated with S, man known to be a violent drug dealer
He was compelled into burglary by S
He pleaded duress
Hudson and Taylor [1971] 2 Q.B. 202
duress -the rationale -
note that the immediacy requirement was pretty loose in that case
… When… there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval.
the convictions were quashed and the appeal allowed
at 206-207: “…duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused.”
The two appellants, aged 17 and 19, were witnesses of a fight which occurred in a pub. They were called to give evidence in criminal proceedings against one of those involved in the fight. They had been threatened with violence if they gave evidence against the defendant. The threat had been repeated on several occasions leading up to the trial and on the day of the trial the person making the threats was in the public gallery in the court room and staring menacingly at the appellants. The appellants lied in court so as not to implicate the defendant and they were later charged with perjury. The trial judge held that the defence of duress was not open to the jury as the threat was not of immediate violence as the threat was made in a court room and thus could not be carried out immediately. The jury convicted and the young women appealed.**
Graham (1982) 74 Cr. App. R. 235
duress - the test for duress
His conviction was upheld. The fact that a defendant’s will to resist has been eroded by the voluntary consumption of drink or drugs or both is not to be taken into account. The Court of appeal set ou the correct test:
(1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury?
(2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?
The fact that a defendant’s will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to this test.
G was married and had an affair with a man who pressured him into killing his wife which they did together. The appellant raised the defences of duress and intoxication. In relation to duress, the appellant raised an argument which was supported by medical evidence that his anxiety and intake of Valium would have made him more susceptible to threats. The trial judge directed the jury that an entirely objective test applies to decide whether the threats were such as to overbear the will of the defendant. The jury convicted and he appealed on the grounds that the judge should have allowed the jury to take into account his particular characteristics.
Howe [1987] 1 A.C. 417
duress - the scope of duress
The key issue on appeal was whether or not duress could be a defence to murder. The House of Lords held that duress was not a defence to murder, whether the accused was the principal or accomplice. That was so whether the threat was to the life of the defendant or their family. The appellants had therefore been rightly convicted of murder. duress in not a defence to attempted murdre or treason either.
The House of Lords took the opportunity to confirm the test (endorsing the test set in Graham) to be used in cases in which it did apply:
Michael Howe and John Bannister (aged 19 and 20, respectively) were driven by Murray (aged 35) to an isolated area. The three men assaulted and tortured the victim, Elgar, and Murray killed him. The three men did a similar thing to another victim, Pollitt, on another day, when all three jointly strangled the victim with a shoe lace. The three men were involved in a third abduction, of Redfern, but this time the victim escaped. The three men were charged with two counts of murder and one of conspiracy to murder. At their trial, Howe and Bannister claimed that they had been involved only because Murray had said he would kill them if they did not obey him. The trial judge directed that duress could operate as a defence to the charge were it to be alleged that the defendants were accomplices to murder, but not in the case in which they were principals.
The appellants were convicted on all three counts and appealed.
Hampshire County Council v E [2007] EWHC 2584
duress- the scope of duress
duress is not a defence to certain statutory crimes
“I am very doubtful whether the terms of Section 444 (1) admit of the possibility of a defence of duress of circumstances at all. The sub-section looks not to the conduct of the parent or even to the parent’s failure to act, but simply to whether the child has failed to attend regularly at school and whether the defendant is the parent of that child. There is no obvious scope for a defence that the parent acted or failed to act by reason of some necessity or duress of circumstances. “
R v Quayle [2005] EWCA Crim 1415
the test for duress - external nature of the threat
see also R v Rodger (Andrew) [1998]
the threat must be one of death or GBH external to the defendant
=convicted if drug misuse
D’s cultivated cannabis to alleviate pain.
Brandford [2016] EWCA Crim 1794
‘In Dao [2011] EWCA Crim 1717 , at [33] and following, this Court expressed a provisional (and obiter ) view that a threat of false imprisonment, without an accompanying threat of death or serious injury, would not suffice.’
Following Hasan, “the threat of damage to property will not suffice.” [32] + the factvthat the threat of duress was indirect was itself ‘no fatal bar’ to raise the defence (Gross LJ)
B’s defence failed because no reasonable jury, properly directed, could have found that she had acted under duress. The threat was vague; it lacked immediacy; she had opportunities to contact the police or otherwise escape from the threat; she had voluntarily associated with known criminals (at [46]). Although the authorities did not discount the indirect relaying of a threat, the more indirectly the threat was conveyed, the more readily the Crown would be able to disprove a defence of duress (at [39]).
Olivia Brandford (B) was in a relationship with Dean Alford (A). In August 2014, the pair was arrested when driving from London to Portsmouth. Upon her arrest, B was found to have concealed within her body 121 wraps containing drugs. A and B, along with another man, Michael Karemera (K), were charged with two counts of conspiracy to supply controlled drugs (cocaine and heroin) contrary to s. 1 of the Criminal Law Act 1977.
At trial, all three defendants pleaded duress. A and K both claimed that they had been forced into selling the drugs and threatened if they did not do so.
R v Shayler [2001] EWCA Crim 1977
The defence of duress - threat against whom
Appeal dismissed
Whilst the defence of duress could be raised in offences under the Official Secrets Act, there was insufficient precision in Shayler’s claims. He could not identify the action that was going to create imminent threats to life, nor could he identify the potential victims or establish that he had responsibility for them.
at 49, the evil must be directed towards the defendant or a person or persons for whom he has responsibility or, we would add, persons for whom the situation makes him responsible… We make the addition… to cover, by way of example, the situation where the threat is made to set off a bomb unless the defendant performs the unlawful act. The defendant may have not have had any previous connection with those who would be injured by the bomb but the threat itself creates the defendant’s responsibility for those who will be at risk if he does not give way to the threat
Shayler was a member of MI5 and had signed a declaration under the Official Secrets Act. In breach of this he had provided journalists with 30 documents which he had obtained through his position and which related to national intelligence and security issues. During a case management hearing the judge ruled that the defence of duress of circumstances was not available to Shayler. He appealed against this ruling contending that the disclosure was necessary to safeguard members of the public.
Cole [1994] CrimLR 582
the nomination of crime
Held:
The defence was unsuccessful and his conviction was upheld. There was not a sufficient nexus between the threat and the crime. The loan shark did not tell him to commit a crime to repay the money.
per Simon Brown LJ:
In our judgment it is plain that the defence of duress by threats can only apply when the offence charged (the offence which the accused asserts he was constrained to commit) is the very offence which was nominated by the person making the threat, i.e. when the accused was required by the threat to commit the offence charged.
The appellant borrowed some money from a loan shark. The loan shark threatened him and his girlfriend with serious violence unless he repaid the money. He robbed several building societies in order to repay the money. He raised the defence of duress.
R v Abdul-Hussain [1999] Crim LR 570
immediacy requirement - teh defence of duress
Held:
Appeal allowed. The convictions were quashed.
The execution of the threat need not be immediate. . Imminent peril of death or serious injury is an essential element of both types of duress. The defence of duress is available to those who hijack an aircraft, although in such cases the terror induced in innocent passengers will raise issues of proportionality for determination.
The seven appellants were Shiite Muslims from Southern Iraq. Abdul-Hussain had been sentenced to death in Iraq following a confession which had been extracted by torture. The other appellants were also fugitives facing death sentences in Iraq. They were living in Sudan and feared being deported by the Sudanese authorities. They hijacked an aeroplane bound for Jordan and it landed at Stanstead airport. After negotiations for 8 hours the appellants surrendered. At trial, the judge ruled that the defence of duress of circumstances could not be put before the jury as there was a lack of the requirement of immediacy.
Emery (1993) 14 Cr. App. R. (S) 394
second limb of the test - characteristics of D
distinguish Hurst [1995] 1 Cr. App. R. 82 at 91: was abused as a baby
So long as there is this objective element in the standard by which a person’s reaction to duress by threats is to be judged, we find it hard to see how the person of reasonable firmness can be invested with the characteristic of a personality which lacks reasonable firmness…
The answer was yes
*… the question… was whether a woman of reasonable firmness with the characteristics of Miss Emery, if abused in the manner which she said, would have had her will crushed so that she could not have protected her child.+
= if a period of duress leads to a ‘crushing of the will’ : relevant to the defence
at 398: a mother does not llok after her child who is getting physically abused. SHe claimed that she underwent duress by the father. Can you take into account the effect of the abuse of the firmness of her will ?
Bowen [1996] 2 Cr. App. R. 157
characteristics of D - the defence of duress
appeal dismissed and conviction upheld
* Characteristics of being abnormally suggestible and vulnerable were not characteristics that could be taken into account.
* Also a low IQ falls short of being a mental impairment and can not be taken into account.
* Stuart Smith LJ identified the following characteristics that could be taken into account: Age, sex, pregnancy, serious physical disability, a recognised mental illness or psychiatric condition.
* Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant.
The appellant had on 40 occasions obtained electrical goods amounting to a value of £20,000 by deception. He had so acted because of threats to petrol bomb himself and his family. The appellant was abnormally suggestible and vulnerable. He had a low IQ of 68. The trial judge did not direct the jury as to whether the characteristics of the defendant could be taken into account. He was convicted and appealed.
R v Ali [1995] Crim LR 303
voluntary association
appeal dismissed
“The crux of the matter, as it seems to us, is knowledge in the defendant of either a violent nature to the gang or the enterprise which he has joined, or a violent disposition in the person or persons involved with him in the criminal activity he voluntarily joined. In our judgment, if a defendant voluntarily participates in criminal offences with a man ‘X’, whom he knows to be of a violent disposition and likely to require him to perform other criminal acts, he cannot rely upon duress if ‘X’ does so.”
The appellant had become involved in drug dealing and became indebted to his supplier. The supplier ordered him to rob a bank or building society otherwise he would kill him. The supplier gave him a gun and told him to commit the robbery the following day.
Conway (1989) 88 Cr. App. R. 159
duress to circumstances
conviction quashed. the defence of duress to circumstances should have been raised to the jury
The appellant was driving with a passenger, Mr Tonna, in his car. Tonna had been in a vehicle a few weeks earlier, when another man was shot and severely injured and Tonna was chased and narrowly escaped. The appellant noticed that a car was following him and fearing that it was the person responsible for the shooting, to doive off at great speed and recklessly. In fact the car was driven by two plain clothed policemen.
R v Martin [1989] 88 Cr App R 343 Court of Appeal
duress to circumstances
also note Pommell [1995] 2 Cr. App. R. 607 : The defendant was convicted with possessing an unlicensed firearm during a night time raid. He said he removed the gun from a man during the night and was going to hand it to the police the following morning.
The defence is available whe the defendant desists from the commission of the offence as soon as he reasonably can
R v Willer (1986) 83 Cr App R 225 Court of Appeal
The appellant had been convicted of reckless driving. As he drove up a narrow road he was confronted with a gang of shouting and brawling youths. He heard one of them shouting, “I’ll kill you Willer” and another threatening to kill his passenger. He stopped and tried to turn the car around. The youths surrounded him. They banged on the car. The appellant mounted the pavement in order to escape. The trial judge ruled that the defence of necessity was not applicable and the appellant was convicted of reckless driving. He appealed against the judge’s ruling.
Held:
Conviction quashed. The Court of Appeal held that the defence of duress should have been available.
appeal allowed
he defence of duress of circumstances should have been available to him following the decisions in R v Conway and R v Willer. No distinction was to be drawn between driving whilst disqualified and reckless drivin
The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work
