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Flashcards

Duress and necessity

Katie Higgs English 27 cards

Cards in this deck (27)

  1. 1HOWE AND BANNISTER (1987)Overrules DPP v Lynch (that duress is available in second degree murder for principal) - not available in murder at all! Not just or humane to withdraw protection of criminal law from the victim to give to the coward and the poltroom in the name of 'concession of human frailty'
  2. 2GOTTS [1992]Duress is not available for attempted murder!
  3. 3NESS [2011]Duress is available for conspiracy
  4. 4GRAHAM1) WAS D IMPELLED TO ACT AS HE DID DUE TO A THREAT BY E THAT MADE HIM FEAR THAT IF HE DID NOT SO ACT, E WOULD KILL HIM OR CAUSE SERIOUS INJURY?
    2) IF SO, WOULD THE SOBER PERSON OF REASONABLE FIRMNESS SHARING THE CHARACTERISTICS OF D HAVE RESPONDED THE SAME?
  5. 5VALDERRAMA-VEGA [1985]DEFENDANT MUST ACT DUE TO THE THREAT OR CIRCUMSTANCES - BUT IT DOES NOT HAVE TO BE THE SOLE REASON. May be other reasons inducing such a crime - as long as it was a substantial reason.
  6. 6DPP v BELL (1992)Defence is not available once the defendant continues to commit the crime when the threat is no longer potent- even if defence as initially available.
  7. 7DPP v MULLALLY [2006]No reasonable person would think to continue drink driving once they have escaped the danger due to what they are wearing.
  8. 8Who can the threat be directed at?ORTIZ - DEFENDANT OR CLOSE FAMILY
    HASAN (Z) DEFENCE AVAILABLE FOR THREAT TO ANYONE D REASONABLY REGARDS HIMSELF RESPONSIBLE FOR
  9. 9MISTAKEN DURESSGRAHAM (1982) DEFENDANT MUST HAVE REASONABLE GROUNDS TO BELIEVE THREAT WAS MADE
    HASAN (2005) DEFENCE ONLY AVAILABLE IF D GENUINELY AND REASONABLY BELIEVES THREAT WAS MADE
  10. 10EMERY (1993)OBITER - A RECOGNISED PSYCHIATRIC SYNDROME OR MENTAL ILLNESS COULD BE ATTRIBUTED TO THE REASONABLE PERSON - JURY TO ASSESS THE DEGREE A WOMAN SUFFERING OF PTSD COULD RESIST THREAT WHERE IT LEADS TO A CONDITION OF LEARNED HELPLESSNESS
  11. 11HEGHARTY [1994]Age, sex, physical health are attributable but not personality disorder leading to emotional instability or 'grossly elevated neurotic state'
  12. 12BOWEN [1996]Low IQ is not relevant - no reason why they should be less brave
    Attributable - age, sex, (though some women would consider themselves with as much courage), pregnancy (added fear for unborn child), serious physical disability, recognised mental illness or psychiatric illness
  13. 13FLATT [1996]Self induced intoxication (drug addiction) not relevant. Supported by Bowen.
  14. 14SHARP [1987]1) Did D join organisation or gang voluntarily?
    2) Did D know the nature of the gang or organisation?
    3) Did he know the gang or organisation might put pressure on him to commit an offence?
    4) At the time he was put under pressure was he an active member?
    Unable to claim duress when D had joined a gang of robbers that D knew was violent prior.
  15. 15SHEPHERD [1988]Shoplifting gang - no suggestion of violence. Lord Mustill suggested that it would be overly harsh for the defendant to lose the defence of duress - applying Sharp criteria, he joined the gang not knowing they would become vilent.
    Lord Lane CJ - no one could question that if a person can avoid the effects of duress by escaping from the threats, without damage to himself, he must do so
  16. 16HASAN [2005] - ASSOCIATIONIf a person voluntarily becomes associated with others engaged in criminal activity in a situation where he knows or ought to know that he may be subject to compulsion by them (or their associates) he cannot rely on the defence.
    Lord Bingham - public interest - the policy of the law must be to discourage association with known criminals, and should be slow to excuse the criminal conduct of those who do so.
  17. 17HASAN [2005] IMMINENCEOverrules Hudson and Taylor [1971 and Abdul-Hussain which required imminence of the threat
    - Threat must be immediate or almost immediate
    Approved Cole [1994] where link between robberies and due payments was found insufficient.
  18. 18BACHELOR [2013]Threats of torturing D's children - failed as 'could have gone to the police over a period of two and a half years' - degree of fortitude required
  19. 19SOUTHWARK LBC v WILLIAMS [1971]Could not rely on necessity for homeless to trespass to avoid suffering
    To allow the hungry to steal, all kinds of lawlnessness and disorder would pass, and if homeless were permitted to trespass, no one's home would be safe
    Necessity would open a door no man could shut
  20. 20DUDLEY v STEVENSON (1884)Necessity could not be used to excuse liability for murder
    - it is a man's duty not to live but die
    - Judges must set standaryds they cannot reach themselves or satisy - but a man has no right to use temptation as an excuse
    - No general defence of necessity
  21. 21CONWAY [1989]Defendants believed the third parties approaching the car were going to attack the passenger - resulted them in carrying out reckless driving. Appeal allowed = duress defence should be left to jury as act committed to escape threats of serious violence
    - Duress as to circumstances
  22. 22MARTIN (COLIN) [1989]Threat wife made directed to herself - compelled D to drive whilst disqualified - Appeal allowed.
  23. 23POWELL [1995]Possession of a firearm to prevent 'geezer' who had it causing damage
    - Kennedy LJ - reiterates no general defence of necessity in English law, but duress as to circumstances may be extended
    1. Was D compelled to act because of the circumstances as he reasonably believed them to be?
    2. Did D have good reason to believe that the circumstances threatened life or serious injury?
    3. Did D act as the sober person of reasonable firmeness would have acted in those circumstances?
  24. 24QUAYLE [2005]Claimed necessity for possession of cannabis due to illnesses causing severe pain.
    Mance -- duress by threats and necessity by circunmstances should in our view be confined to cases where there is an imminent danger of physical injury
    Jury cannot identify objective/extraneous factors to assess the motive of the defendant's acts
  25. 25BOURNE [1938]Defence to the unlawful procuring of a miscarriage for a surgeon who performed an abortion on a suicidal 14 year old victim of rape
  26. 26F v WEST BERKSHIRE HEALTH AUTHORITY [1990]May be a defence of necessity in action to preserve the life or wellbeing of another person unable to consent
  27. 27RE A (CHILDREN) [2001]MURDER - separation was deemed lawful even though it would involve the killing of Mary - in order to avoid the death of other twin. Produced an unclear ratio of necessity and self defence
    Rare situation that will be given the opportunity to presents its fact to court each time
    Brooke LJ:
    (1) the act is needed to avoid inevitable and irreparable evil
    (2) no more should be done than is necessary for the purpose to be achieved
    (3) the evil inflicted must not be disproportionate to the evil avoided.

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Flashcards on Duress and necessity, created by Katie Higgs on 03/05/2018.
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