Defences (law)

Defences:

Duress:

• Defendant argues they had no alternative but to commit the crime, because of threat/circumstances.
• If defendant is successful with this defence it will lead to an aqquital.
• The test for duress was established in Graham(1982):
•  1) Did D believe there was a good cause to fear death/serious injury if crime was not commited? 
• 2) Would a sober person of reasonable firmness have acted in the same way?
• Valderrama-Vega - Threat of exposure as homosexual and financial pressure is not enough.
• Abdul-Hussain(1999)- Hijackers thought if they returned to thier country, they would be executed. Threat not imminent but influenced D decision and the defence was successful.
• The essential requirements for duress was established in Hasan(2005):
• 1) threat must be death/serious injury
• 2) The crime was a direct cause of the threats
• 3) Threat must be directed towards D, Ds family or towards another whose safety D would reasonably regard himself responsible 
• 4) No reasonable evasive actions (e.g phoning police etc)
• 5) Both parts in Graham are objective
  
• 6) Duress not avaliable if D voluntarily assosicated with criminals 
• If D is involved with criminals and can reasonably foresee the risk of violence, the defence will fail. Sharpe(1987)
• Shephard(1987) - No evidence of prior violence before threats, so duress was successful.
• Even if D is mistaken as to whether there was a threat, defence can still succeed, if D honestly and reasonably believed there was a threat. Conway(1988)
• Limits of avaliability of duress Hasan(2005):
• 1) Not avaliable for murder Howe(1987)
• Not avaliable for attempted murder Gotts (1982)
• Not avaliable if D is voluntarily involved with criminals Sharpe(1987)
• The Law Commission have said duress should be avaliable for all defences, however this has not been implemented.

Self Defence:

• Has two forms, Public and Private.
• Private defence- D can use this defence if he has used force that was reasonable(in the circumstancesas D believed them to be):
• A) To protect himself
• B) To protect another R v Rose
• C) To protect his/her property R v Hussey
• D) To protect anothers property
• Public defence- S3 Criminal Law Act 1967 states that a person may use force that is reasonable in the circumstances in the prevention of crime, assisting a lawful arrest of offenders/supected offenders/persons unlawfully at large.
• Under the public defence a person can use force in the following situations:
• A) To prevent crime/assist in a lawful arrest
• B) To prevent breach of the peace
• C) To protect property/prevent tresspass
• D) To protect himself from unlawful violence
• E) To protect himself from unlawful detention 
• Cousins (1982) - "Both defences exist and can be used in conjuction with eachother."
• Subjective…