Duress and necessity

Duress and necessity

1. When claiming duress

   • Has A/R & M/R to commit crime, but was forced to do so because a third party had threatened himself or his family.
     • DPP v Lynch (1975)
       • Judicial attitudes have hardened
         • R v Abbott (1977)
           • Taken part in a brutal killing following death threats against himself and his mother.
             • Appeal dismissed and conviction upheld.
               • The defence of duress is not available for murder to a principal in the first degree.
         • R v Howe (1987)
           • The defence should not be available to one who attempts murder.
             • Lord Griffiths: “We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it".
         • R v Gotts (1992)
           • Boy was ordered by his father to kill his mother otherwise the father would shoot him.
             • House of Lords followed the decision in R v Howe (1987) - defence is not applicable to attempted murder
       • Forced to drive a car, if he didn't he would be shot. Defence upholds to those who did not personally do the killing
         • Lord Morris: If someone is really threatened with death or serious injury unless he does what he is told to do, is the law to pay no need to the miserable, agonising plight of such a person?
     • R v Hansan (2005)
       • Lord Bingham judgement
         • (i) there must be a threat of death or serious injury
         • (ii) that threat must have been made to D or D's immediate family or someone for whom D would reasonably regard as responsible
         • (iii) D's perception of the threat and conduct in response are to be assessed objectively
         • (iv) D's conduct must have been directly caused by the threats
         • (v) there must have no evasive action for D to reasonably take
         • (vi) D cannot rely on threats to which D has voluntarily laid open
         • (vii) defence is unavailable to murder, attempted murder or treason
         • Voluntarily submitted his will to a dominant human being
       • 'Minded' escorts while driving them to their clients. Company taken over by violent man, who boasted about recent murders he had committed.
         • Threatened appellant & family w/ harm if he did not comply with burglary
           • COA: Conviction for aggravated burglary quashed, no evasive action could be taken
             • HOL: Allowed appeal, conviction reinstated
   • Seriousness of the threat
     • Response to threat must be judged adjacent the likely reaction of an ordinary person
       • R v Graham (1982)
         • Two part test
           • Did D act in way because he was threatened & had good cause to believe they would be carried out?
             • In other words, did the threat exist?
           • Would a sober person of reasonable firmness with same characteristics of the accused react in the same way
         • Appellant lived w/ wife & homosexual lover (who was of a violent disposition)
           • Hatched a plot to kill wife & bury body, raising defence of duress and intoxication
             • Should defences be allowed?
               • The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not to be taken into account.
     • Threat of death and injury need not be the only reason
       • R v Valedrama-Vega (1985)
   • Immediacy
     • Threat of serious death and injury MUST be weighing on Ds mind at the time of the crime.
       • R v Safi and Others (2003)
         • An Imminent peril - they have to BELIEVE that there is an imminent threat
         • DD hijacked an aeroplane, imprisoned crew and passengers, possessed a firearm with intent, and possessed explosives. They were escaping from a brutal regime in Afghanistan.
   • Defence will not apply to the voluntary joining of criminal gangs - put self in position.

2. Duress of circumstances

   • Threat comes from the circumstances of the case
     • R v Willer
       • Compare to R v Howe: Should lay down own life before taking anyone else's - high level of heroism
       • Appellant mounted the pavement in order to escape threats from youths.
         • Court of Appeal held that the defence of duress should have been available
     • R v Martin (1989)
       • The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work.
         • Wife had attempted suicide on previous occasions
           • Simon Brown J: defence arises as duress, that is pressure upon the accused's will from the wrongful threats or violence of another.

3. Necessity

   • D has a choice between committing a criminal offence or allowing what he or she considers to be a far worse event. Choosing the lesser of two evils.
   • English law does not necessarily recognise the defence
     • R v Dudley and Stephens
     • Re F (Wordship, Sterilisation)
       • Public necessity
       • Private necessity
       • Assisting another w/out consent
         • Not practicable to communicate
         • Action taken is how reasonable person would react
     • Re A
       • Causing intentional murder in order to save other twin
         • Act was needed to avoid an inevitable and irreparable evil
         • No more was done than was reasonably necessary for the purpose to be achieved
         • The evil inflicted was not disproportionate to the evil avoided
         • R v Shayler
           • the evil must be directed towards the person for whom he had responsibility
             • R v Jones