duress of circumstances and necessity
- Created by: Hayley Petts
- Created on: 05-06-14 20:32
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- Duress of circumstances and necessity
- duress of circumstances
- definition
- where the threats come the circumstances rather than a direct threat
- defence evolved in last 25 years because of limits created by duress of threats
- two part test - Martin (1989)
- was D compelled to act as he did because he reasonably believed he had good reason to fear death or serious injury?
- if so, would a sober person of reasonable firmness sharing the characteristics of D have acted in the same way?
- now extends beyond driving offences
- Willer (1986) - w and passenger in car surrounded by threatening youths. w drove slowly on pavement to escape
- CA said jury shouldbe able to consider whether W drove under some kind of duress
- Willer (1986) - w and passenger in car surrounded by threatening youths. w drove slowly on pavement to escape
- must be threat of death or serious injury
- Conway (1988) - D's passengers saw men and thought they had shot at him so D drove off fast
- CA quashed convictions saying duress possible if from objective perspective acting to avoid threat of death or serious injury
- Conway (1988) - D's passengers saw men and thought they had shot at him so D drove off fast
- extent of defence
- Cairns (1999) - man threw himself onto bonnet of D's car. D felt threatened so drove off with man on bonnet
- D braked and man fell under car and badly injured
- convictions quashed as reasonably perceived threat or serious injury or death
- D braked and man fell under car and badly injured
- Pommell (1995) - found by police with gun in bed during drugs raid. P said taken gun from man and going to hand it in
- CA held that duress of circumstances could be available for all crimes accept, murder and attempted murder
- Cairns (1999) - man threw himself onto bonnet of D's car. D felt threatened so drove off with man on bonnet
- definition
- necessity
- definition
- D acts prevent a worse evil happening
- very similar to duress of circumstances, but court been reluctant to recognise it as a defence in its own right
- methods of avoiding this defence have been used
- necessity now exists but remains potentially limited in scope
- Dudley and Stephens (1884) - D and S adrift at sea without food and water so ate cabin boy
- no defence as no life worth more than another
- Re F (1990) - health authority applied for declaration to sterilise F, a severely mentally disabled patient at risk of pregnancy
- HL granted declaration as lawful duty of doctors to act based on necessity
- Re A (2000) application for declaration of separation of twins so one lives but one dies
- Lord Brook approved of the following four principles
- act was done only in order to avoid consequences which would not otherwise be avoided
- those consequences, if they had happened would have inflicted inevitable and irreparable evil
- no more was done than was reasonably necessary for that purpose
- evil inflicted by it was not disproportionate to the evil avoided
- Lord Brook approved of the following four principles
- Shayler (2001) - past member of MI5 charged with breaching OSA 1989
- no defence of necessity as Lord Wolf used same test as Lord Brook in Re A
- suggested that duress of circmustnces and necessity are interchangeable
- definition
- duress of circumstances
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