Duress
- Created by: natalie..law
- Created on: 14-04-16 00:47
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- Affirmative Defences: Duress
- Negate liability even where actus reus + mens rea are met
- Complete acquittal where successful
- Not available for murder (Abbott); attempted murder (Howe 1987 obiter; confirmed in Gotts 1992); accessory to murder (Howe 1987); treason; where D joins a violent criminal gang (Sharp); terrorist group (Fitzparick); indebted to drug dealers (R v Ali; R v Flatt); where D could have taken evasive action (Huxley; Abdul-Hussain; Hasan)
- May be allowed where criminal organisation not known to be violent (Shepherd)
- D does not have to foresee the type of offence (Hasan)
- Heath [2000] - drug dealers - defence not available as he knew the risk; Mullally [2012]
- Ali [2008] - not necessary for D to know that coercer is engaged in any specific criminal activity as long as the risk of being subjected to threats of violence was foreseen/foreseeable
- Available for causing GBH with intent (s.18 OAPA) but not murder despite holding same mens rea - defence depends on fate (if V dies then guilty of murder; V alive acquittal)
- May be allowed where criminal organisation not known to be violent (Shepherd)
- Not available for murder (Abbott); attempted murder (Howe 1987 obiter; confirmed in Gotts 1992); accessory to murder (Howe 1987); treason; where D joins a violent criminal gang (Sharp); terrorist group (Fitzparick); indebted to drug dealers (R v Ali; R v Flatt); where D could have taken evasive action (Huxley; Abdul-Hussain; Hasan)
- D has mens rea but as acting under compulsion not free will so negated
- excuse, not like self-defence (justification)
- Complete acquittal where successful
- Action taken by D was necessary to avoid the unjust threat of harm
- Obedience taken to the criminal law does not demand disproportionate personal sacrifice
- Excuse - unfair to expect a person to sacrifice themselves or a person for whom responsible for conformity to the law
- Not a defence to murder (Abbott v The Queen [1977] UKPC)
- duress = excuse (R v Lynch [1975]; R v Hasan [2005]) both HL
- AG v Whelan [1934] Murnaghan J (Irish CCA) - defence because "threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.'
- Excuse - unfair to expect a person to sacrifice themselves or a person for whom responsible for conformity to the law
- Obedience taken to the criminal law does not demand disproportionate personal sacrifice
- 1. duress by threats from another person
- a) immediate death or serious personal injury to D or another
- Threat to D, his family (Ortiz (1986); Martin (1989)); or girlfriend (Hurley and Murray [1967] SC of Victoria) or someone he feels reasonably responsible for (Hasan [2005])
- Shayler - could not pinpoint what threats might involve and to whom
- Lord Woolf - incl. members of D's close circle + also instances where D is placed in a emergency situation (bomb in office if D does not act)
- Lord Woolf: disillusioned agent who claims someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, e.g. the general public
- Conway - incl. passengers in car
- Shayler - could not pinpoint what threats might involve and to whom
- No evasive actions could reasonably have been taken - police protection
- Threat must be balanced against seriousness of offence by D
- Threat to D, his family (Ortiz (1986); Martin (1989)); or girlfriend (Hurley and Murray [1967] SC of Victoria) or someone he feels reasonably responsible for (Hasan [2005])
- Definition in AG v Whelan
- “Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance."
- a) immediate death or serious personal injury to D or another
- 2. duress by circumstances (imminent peril - in avoiding it D nominates and executes their own crime)
- Harm threatened cannot be out of proportion to the price exacted (Perka [1984])
- 'Minimum - situation so emergent + peril so pressing normal human instincts cry out for action and make a counsel of patience unreasonable'
- Harm threatened cannot be out of proportion to the price exacted (Perka [1984])
- Reform? In opposition to omissions liability - people should sacrfiice themslves for others
- Is it fair to treat a coerced killed differently from someone who had intent + lost control?
- Prof Wilson - should be a partial excuse when V is victimised because of D's self-preservation
- Partial as society needs expiation of guilt from D who kills another's loved one to save themself
- Prof Wilson - should be a partial excuse when V is victimised because of D's self-preservation
- Is it fair to treat a coerced killed differently from someone who had intent + lost control?
- Negate liability even where actus reus + mens rea are met
- Graham test
- Was D reacting to an immediate threat? (Gill 1963)
- Does not always have to be immediate (R v Ireland)
- R v Hudson & Taylor - perjury, 2 girls, seeking protection not always reasonably expected
- Defs young + impressionable
- Baker + Ward - had opportunity to seek police prot. but trial judge did not consider if reasonable person in their position would have done so - acquitted
- Duress of circumstances (Abdul-Hussein - plane hijack escaping death in Iraq)
- But courts should be restrictive where evasive action/police protection was available (Hasan) - public policy
- Imminent threat NOT immediate threat
- R v Hudson & Taylor - perjury, 2 girls, seeking protection not always reasonably expected
- Was the threat reasonably held?
- Was it a threat of death/GBH?
- Did D have a good cause to fear death or GBH ?
- Threat must be so great overbears ordinary powers of human resistance
- Was it a threat of death/GBH?
- Does not always have to be immediate (R v Ireland)
- R v Cole 1994 Threat has to be for a specified crime. It is not sufficient that the defendant has felt the need to commit a crime to meet a demand for money.
- Approved in Howe (1987) and Hsan (2005) all UKHL
- Was D reacting to an immediate threat? (Gill 1963)
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