duress and necessity

  • Created by: LA1
  • Created on: 04-06-17 17:32
What is it?
Its a defence where D has been forced to commit a crime due to being threatened by death/serious injury, it can be through duress by threats and duress by circumstances and it can be used as a defence to all crimes except murder,att.murder, treason
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Wilson
D,13 and father charged with killing ds mum, claimed he had done this as too scared of father. COA held duress provided no defence to murder and however susceptible D may be. Should it be different where D is young or susceptible?
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Duress by threats
Where a persons will is overborne by threats of death or serious injury so he commits an act he wouldn't normally do. This is problematic for the juries in terms of applying the threats and its effect
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Seriousness of the threat
The threat must be of death/serious injury. VALDERRAMA VEGA- D charged with importing cocaine, claimed he'd done this because of threats. TJ said duress only available if threats sole reason for offence.
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Threats to whom?
This is difficult for the juries where they have to put themselves in the shoes of the D. Threats to family and friends can be a basis for duress. MARTIN-Ds wife threatened suicide unless D drove disqualified.
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Subjective and objective tests
GRAHAM- D lived with wife,K, D and k killed the wife. He claimed he'd held flex due to his fear of K. The conviction was upheld and a 2 stage test was created.= SUBJECTIVE AND OBJECTIVE
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Subjective Test
MARTIN-D suffered SAS, thought threats would be carried out if he didn't commit the robbery so he did. COA quashed as held mental condition should be relevant in deciding whether D believed his safety was at risk.
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Objective test
BOWEN-D had a low IQ and obtained goods for men who told him they'd petrol bomb him and his family. It was held relevant characteristics could be accepted- age, gender, pregnancy, SPD,RMI. This allows for humanity in law there could be more.No iQ.
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No safe avenue of escape
Duress can only be used as a defence if D is laced in a situation where theres no safe avenue of escape. HUDSON&TAYLOR- Ds committed perjury when they were witnesses for man trial, told if evidence, cut up. Quashed as police can't provide protection
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Imminence of the threat
Threat must be effective the moment the crime was committed, doesn't have to be carried out immediately. ABDUL HUSSEIN Ds hijacked plane to escape persecution in Iraq. TJ ruled duress couldn't be considered by jury as COA ruled it must be an imminene
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ABDUL HUSSEIN
Ds hijacked plane to escape persecution in Iraq. TJ ruled duress couldn't be considered by jury as COA ruled it must be an imminenent peril of death, peril must operate on ds mind, execution of the threat need not be immediate.
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Threats to commit specific offence
COLE- D, gf and child threatened if D didn't repay money owed, he was previously hit and D robbed 2 building societies. Conviction upheld as D hadn't been told to commit the robberies.
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Self induced duress
D brings duress through own actions- SHEPHERD-D joined organised gang of shoplifters,tried to stop but threatened with violence. Quashed as unknown gang'd use violence. If you join a pressure group and they end up being violent you can use it.
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Cont.
Policy issues relating to murder and by associating yourself with known criminals could lead to inconsistency.
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Duress by circumstances
This is where D is forced to act becasue of circumstances.
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WILLER
D drove on pavement to escape gang, drove to police station to report them and was charged with reckless driving. COA said the jury should've been allowed to decide whether D drove under that form of compulsion that is under duress.
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cont.
Takes account the fact Ds act differently under extreme pressure.
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Necessity
Circumstances for a person to choose between the lesser of 2 evils. Similar to duress and necessity isn't available to murder.
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Re A
Conjoined twins, court justified it as a necessity
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DUDLEY AND STEPHENS
Ds ate cabin boy after being shipwrecked for 9 days without food or water. They were convicted of murder and necessity was rejected.
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Cont.
necessity forms a basis of self defence and criminal damage defences.
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Other cards in this set

Card 2

Front

D,13 and father charged with killing ds mum, claimed he had done this as too scared of father. COA held duress provided no defence to murder and however susceptible D may be. Should it be different where D is young or susceptible?

Back

Wilson

Card 3

Front

Where a persons will is overborne by threats of death or serious injury so he commits an act he wouldn't normally do. This is problematic for the juries in terms of applying the threats and its effect

Back

Preview of the back of card 3

Card 4

Front

The threat must be of death/serious injury. VALDERRAMA VEGA- D charged with importing cocaine, claimed he'd done this because of threats. TJ said duress only available if threats sole reason for offence.

Back

Preview of the back of card 4

Card 5

Front

This is difficult for the juries where they have to put themselves in the shoes of the D. Threats to family and friends can be a basis for duress. MARTIN-Ds wife threatened suicide unless D drove disqualified.

Back

Preview of the back of card 5
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