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Ge Genneerraall DDeeffeenncceess (3(3))::
D Duurreessss &&
N Neecceessssiittyy
By the end of this unit you will be able to (AO1):
Explain the scope of the defence of duress Understand what is meant by the term “duress of circumstances”, and its relationship to the defence of necessity Explain the law surrounding self-induced or voluntary duress
You will also be able to (AO2): Discuss the importance of public policy in the development of the defences Evaluate the limits of the defences’ availability Discuss whether necessity exists in the common law.
Ho Hommeewwoorrkk
You are reminded that homework is a vital component of A Level Law. It is used to assess your progress, understanding and the development of your application skills. Homework which is not handed in may incur a fail grade, which may affect your overall attainment.
- Write up your response to the section C question detailed below, remembering the skills and the approaches.
- Revise for a 60 mark drag test on the whole of general defences.
En Endd ooff UUnniitt EEvvaalluuaattiioonn::
At the end of this unit, you will be given one week to revise for a DRAG test on the subject of general defences (this includes insanity, automatism, intoxication, duress and necessity) You should bear in mind the grade boundaries below, and your aim in the June 2012 exams.
Ahmed owes Fernando money. Fernando tells Ahmed that unless he repays the debt he will reveal to Ahmed’s wife that Ahmed is having an affair. Ahmed carries out a burglary to repay the debt. Ahmed is also a member of a shoplifting gang run by Spike. Spike emails Ahmed from Italy and orders Ahmed to collect a large quantity of heroin or Ahmed will be beaten up later that day. Ahmed collects the heroin.
Statement A: If Ahmed is charged with burglary the threat to reveal his affair will provide him with a valid defence.
Statement B: Ahmed is able to successfully plead a defence if charged with burglary because he had no choice but to commit a burglary to repay the debt.
Statement C: Ahmed is able to successfully plead a defence to a charge of possession of a controlled drug even though he is a member of Spike’s gang.
Statement D: Ahmed is unable to successfully plead a defence to a charge of possession of a controlled drug because Spike is in Italy. [20]
S Soo,, wwhhaatt iiss dduurreessss??
Start: Look at the situations below. In which of them do you think that D should have a complete
defence? Which do you think should still be convicted and why?
D is told that unless he pays back his debt to the local money lender, he, his girlfriend and his child may suffer physical harm. He robs two post offices
D is told that unless he does as he is asked, his affair with another woman will be revealed. He takes part in a robbery
D is told that unless he does as asked, he may be killed and/or his family informed of his debts and his homosexuality. He imports drugs to the UK.
D is married, and living with his gay lover, who can be violent. One night the lover puts a thin wire round the neck of the wife and hands the other end to D, telling him to pull. D, worried that the lover may attack him, does so.
DD hijacked a plane in Afghanistan, forcing it to fly to the UK, and claiming they were fleeing the Taliban after fearing for their lives. The plane stopped in Moscow and then flew on the UK. They held 150 people hostage at a UK airport for 3 days.
S Sccooppee ooff tthhee DDeeffeennccee..
(This means what it covers)
The main point to remember is that duress is currently available as a defence to all crimes except:
- ; or
DPP for Northern Ireland v Lynch 1975
[This is an ‘aberration’ in the current law and the House of Lords used the Practice Direction 1966 to overrule the decision in this case, although the Law Commission would quite like to bring it back!]
Facts: Ratio: D was threatened by IRA. Drove them, they HL 3:2 held that D could rely on the defence of killed policeman, and he was the getaway duress to 2nd^ party participation in murder. driver. D had been threatened with death or serious injury.
AO2: Student Thinking Why should duress be a defence to murder?
Need some help with the argument? Look at the reasons from the Law Commission on the board!
R v Howe 1987 HL key case Read the enclosed and answer the following questions. Remember that this is aimed at developing both your explanation and evaluation skills.
- Why does Hailsham think that duress should not be a defence to murder?
- How does he explain the anomaly of duress being a defence to an s.18 wounding, but not to murder, where the s.18 wounding is sufficient for MR (“intention to commit GBH”)?
- Why does Griffith think that there should be no defence to murder?
- Why does he say that attempted murder should also be excluded from the defence?
- Is this ratio or obiter? Why?
- What is the ‘compromise’ solution? What do you think of it? Why?
This interpretation of the law has been confirmed in the case of R v Wilson (Ashlea) 2007
Look at the report of the case on the IWB. Using the information, complete the sections below, and explain on what grounds the decision of Gotts was distinguished.
Facts:
The basis of D’s argument: Does the CA think there were grounds for the defence? Why/ why not?
Outcome for D:
murder. I add attempted murder because it is to be remembered that the prosecution have to prove an even more evil intent to convict of attempted murder than in actual murder. Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent to cause really serious injury.
It cannot be right to allow the defence to one who may be more intent upon taking a life than the murderer. This leaves, of course, the anomaly that duress is available for the offence of wounding with intent but not to murder if the victim dies subsequently. But this flows from the special regard that the law has for human life, it may not be logical but it is real and has to be accepted.
I do not think that your Lordships should adopt the compromise solution of declaring that duress reduces murder to manslaughter. Where the defence of duress is available it is a complete excuse. This solution would put the law back to lines upon which Stephen suggested it should develop by regarding duress as a form of mitigation. English law has rejected this solution and it would be yet another anomaly to introduce it for the crime of murder alone.
What about attempted murder then?
Well, you’ve already met this case in the report of Wilson, and the persuasive precedent of the House of Lords
was applied by the Court of Appeal in the later case of R v Gotts 1992
R v Gotts 1992 Key Case
Facts: Ratio: “intent of attempted murder is more evil than that required of a murderer”
Sentencing should be used instead
Student Thinking (AO2): How fair is this approach to the law? Should the court be able to take into account the characteristics of D and who is doing the threatening in assessing whether or not D may use duress as a defence to attempted murder?
Du Durreessss TTyyppee 11::
D Duurreessss ooff TThhrreeaattss..
Remember : Strictly speaking, D has to have both a voluntary mens rea and the actus reus.
So, what do we mean by ‘duress of threats’?
Ok… a little scenario. For each bullet point, decide whether or not, using your common sense, I should be able to rely on a defence of duress and not and why
Mr Hill calls me into his office and tells me that if I don‟t steal all the exam papers from the examination office in the next 24 hours, so that I can help all the Law students cheat and get fantastic grades, he will:
Kill my sister?
Take my ID card from me and chop it up in front of me?
Ban me from drinking coffee for the next 6 months?
Break both my legs?
Rather than telling me to steal the papers, Mr Hill tells me to do everything in my power to make sure
that the Law students do brilliantly or he’ll break my legs. I decide to steal the papers.
Threatens to shoot three people passing the school, if I do not steal the papers
Tells me that I have two months to accomplish the theft, or he’ll kill me
Tells me he’ll kill me, but as I am schizophrenic, I do not realise that he is joking and think that he is
acting on behalf of the little green men who talk to me, and steal the papers.
So, what rules can you work out on the basis of this?
WWhhoo ccaann bbee tthhrreeaatteenneedd??
The general rule is that D should be the one threatened.
However, case law does tell us that threats to those who D feels himself responsible for may also be included. This is quite narrowly defined, and obviously would include ………………………………....
The test for this is the objective:
“some other person for whose safety D would reasonably regard himself as responsible.”
R v Wright 2000
Facts: Ratio:
Who else counts? A number of these cases are actually come from the duress of circumstances area…
Case Facts Outcome Relationship?
R v Martin 1989
R v Conway 1988
R v Cole 1994
Student Thinking (AO2): What if the threat is to a stranger?
Jim wants someone to plant a bomb, but doesn’t want to do it himself. He grabs Bob and holds a gun to his head. Whilst Bob has the gun pointed at his head Fred walks by. Jim tells Fred to plant the bomb or he will kill Bob.
Is this sufficient? Would the reasonable man have planted the bomb?
So how do we know D is genuinely acting under duress?
Firstly : let’s make it clear that the threat must be serious , unavoidable and imminent , as well as not being self-induced.
Aside from that, we have to apply the following test:
R v Graham 1982 KEY CASE
Facts: Ratio:
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death as a result of what X says or does; and
- If so, would a sober person of reasonable firmness, sharing the characteristics of D have responded in the same way.
Thinking:
It was a case of murder, so why was Graham even able to argue duress?
One of these is subjective... and one is objective – can you spot what is what?
What problem(s) can you spot with the test so far?
What kind of characteristics would you consider appropriate?
22 .. AAnndd nnooww (^) tthhee (^) oobbjjeeccttiivvee (^) bbrraanncchh
So, the reasonable man must have responded in the same way, which limits the use of the defence. However, according to the definition, the jury is allowed to take into account some of D’s characteristics. The question then becomes which characteristics are allowed in?
R v Bowen 1996
Facts:
Read the enclosed extract and complete the grid below:
CHARACTERISTICS ALLOWED CHARACTERISTICS NOT ALLOWED.
- What about self-induced characteristics e.g. drug taking, alcohol etc.?
- Why do you think that the courts have created these exceptions?
- Are they in line with the law on loss of control as a partial defence to murder? Why? Why not?
R v Bowen [1997]
STUART-SMITH LJ:
The classic statement of the law is to be found in the judgment of the Court of Appeal in R v Graham [1982] ... But the question remains, what are the relevant characteristics of the accused to which the jury should have regard in considering the second objective test.
This question has given rise to considerable difficulty in recent cases. It seems clear that age and sex are, and physical health or disability may be, relevant characteristics. But beyond that it is not altogether easy to determine from the authorities what others may be relevant ... In the case of duress, the question is: would an ordinary person sharing the characteristics of the defendant be able to resist the threats made to him? What principles are to be derived from [the] authorities? We think they are as follows:
(1) The mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person are not characteristics with which it is legitimate to invest the reasonable/ordinary person for the purpose of considering the objective test.
(2) The defendant may be in a category of persons who the jury may think less able to resist pressure than people not within that category. Obvious examples are age, where a young person may well not be so robust as a mature one; possibly sex, though many women would doubtless consider they had as much moral courage to resist pressure as men; pregnancy, where there is added fear for the unborn child; serious physical disability, which may inhibit self protection; recognised mental illness or psychiatric condition, such as post traumatic stress disorder leading to learned helplessness.
(3) Characteristics which may be relevant in considering provocation, because they relate to the nature of the provocation itself will not necessarily be relevant in cases of duress. Thus homosexuality may be relevant to provocation if the provocative words or conduct are related to this characteristic; it cannot be relevant in duress, since there is no reason to think that homosexuals are less robust in resisting threats of the kind that are relevant in duress cases.
(4) Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant.
(5) Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition provided persons generally suffering from such condition may be more susceptible to pressure and threats and thus to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did. It is not admissible simply to show that in the doctor's opinion an accused, who is not suffering from such illness or condition is especially timid, suggestible or vulnerable to pressure and threats. Nor is medical opinion admissible to bolster or support the credibility of the accused.
(6) Where counsel wishes to submit that the accused has some characteristic which falls within (2) above, this must be made plain to the judge. The question may arise in relation to the admissibility of medical evidence of the nature set out in (5). If so, the judge will have to rule at that stage. There may however be no medical evidence, or, as in this case, medical evidence may have been introduced for some other purpose, e.g. to challenge the admissibility or weight of a confession. In such a case counsel must raise the question before speeches in the absence of the jury, so that the judge can rule whether the alleged characteristic is capable of being relevant. If he rules that it is, then he must leave it to the jury.
(7) In the absence of some direction from the judge as to what characteristics are capable of being regarded as relevant, we think that the direction approved in R v Graham without more will not be as helpful as it might be, since the jury may be tempted, especially if there is evidence as there was in this case relating to suggestibility and vulnerability, to think that these are relevant. In most cases it is probably only the age and sex of the accused that is capable of being relevant. If so, the judge should, as he did in this case, confine the characteristic in question to these.
How are these principles to be applied in this case? Miss Levitt submits that the fact that he had, or may have had, a low IQ of 68 is relevant, since it might inhibit his ability to seek the protection of the police. We do not agree, we do not see how low IQ, short of mental impairment or mental defectiveness, can be said to be a characteristic that makes those who have it less courageous and less able to withstand threats and pressure ... For these reasons, the appeal will be dismissed.
IImmmmiinneennccee ooff tthhrreeaatt
The question here is whether the threat should be imminent or immediate
Rule : The threat must be operative at the time the crime is committed. However , it is not necessarily one that has to be carried out immediately.
Abdul-Hussain 1999 This is also a case of duress of circumstances.
Facts: Ratio : DD were Shiite Muslims who fled from Iraq to Sudan and feared being sent back. They hijacked a plane, eventually went to UK.
The trial judge thought that the threat was not sufficiently ‘close and immediate’ to give rise to a ‘virtually spontaneous action’ and thus no duress.
RULES :
- Imminent peril of death or serious injury to those D is responsible for.
- The peril must be operative on D’s mind at the point of committing the act, such that it overbears their will. [this is judged by the jury]
- Not necessarily immediate execution.
This was confirmed by the House of Lords in R v Safi [remember the other hijackers?].
BUT: in the later case of R v Hasan (Z), Lord Bingham uses the phrase “D reasonably expects to follow immediately or almost immediately”.
Student thinking AO2: Why might this cause confusion for the courts?
What’s the difference between the two words?
C Coommmmiitt aa ssppeecciiffiicc ccrriimmee This applies to duress of threats only.
A general threat to do something is not sufficient. Which one of the following statements would have a defence of duress of threats?
Bob threatens me with the death of my granny unless I steal a school laptop
Bob threatens me that unless I give him the money I owe him, he will kill my granny.
What‟s the justification for imposing this limitation?
R v Cole 1994 Facts: Ratio:
What problems does this approach incur? Well, look at the following facts, from another type of duress, and explain the problem.
D had been drinking in the pub, and his friend Y offered to drive him home. D fell asleep in the car, and woke up to find that Y had vanished. He leaned over and pulled the car over to the side of the road, when he was arrested for drink driving.
The problem is...
How far does the rule extend?
Now, listen to the facts of Shepherd 1987. Why was D able to successfully argue duress here? Apply the rules!
On what grounds do you think the court distinguished this case from Sharp?
W Whhaatt iiff yyoouu’’rree (^) nnoott aa (^) ggaanngg mmeemmbbeerr...... y yoouu (^) jjuusstt hhaanndd aarroouunndd wwiitthh bbaadd (^) ‘‘uunnss??
Q: Did you really think the court was going to allow them a defence?! A: Voluntary duress also includes those who put themselves in a situation where they are likely to be threatened. [or in posh words ‘consort with those with a propensity for violence’]
R v Heath 2000
Facts : Ratio :
Defence of duress was denied and conviction upheld. This is because he voluntarily put himself in a situation where he knew he might be threatened
R v Hasan (Z) 2005 Key Case
The facts:
- … The defendant had worked as a driver and minder for Claire Taeger, who ran an escort agency and was involved in prostitution. In about July or August 1999, according to the defendant, Sullivan became Taeger’s boyfriend and also her minder in connection with her prostitution business. He had, the defendant said, the reputation of being a violent man and a drug dealer. …
- … The defendant admitted … that he had forced his way into [a] house … armed with a knife, and had attempted to steal the contents of [a] safe, but claimed that he had acted under duress exerted by Sullivan, who had fortified his reputation for violence by talking of three murders he had recently committed. On the day in question, the defendant claimed he had been ambushed outside his home by Sullivan and an unknown black man whom he described as a ‘lunatic yardie’. Sullivan demanded that the defendant get the money from the safe … and told the defendant that the black man would go with him to see that this was done. Sullivan said that, if the defendant did not do it, he and his family would be harmed. The defendant claimed that he had no chance to escape and go to the police. The black man drove the defendant to the house and gave him a knife, saying that he himself had a gun. The defendant then broke into the house …
Ratio : The Court of Appeal quashed the conviction, but sent it on to the HL for appeal, who reinstated his convictions, and said that duress is excluded where “as a result of his voluntary association with others :
“he foresaw (or possibly could have foreseen) the risk of being then and there subjected to any compulsion by threats of violence.”
Student Task:
This case has commented on a number of other areas of duress Use your understanding of the ropic so far and your notes to complete the table below:
Area Comment
R v Ali (2008)
This is the most recent statement of the law, and essentially confirms Hasan.
Fact: Ratio:
EExxtteennssiioonn:: AAiimmiinngg ffoorr tthhee ttoopp??
TThhiiss iiss ffooccuusseedd oonn eexxtteennddiinngg aanndd ddeevveellooppiinngg yyoouurr ccrriittiiccaall AAOO22 aabbiilliittyy. U.Ussee tthhee nnootteess iinn tthhee tteexxttbbooookk,, oorr tthhee ffuullll re repporortt wwhhiicchh ccaann bbee aacccceesssseedd hheerree:: http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050317/hasan-1.htm
Hasan 2005
- There were three options were which were given to the HL to decide from [clue: one is above!]
- What was the majority? Who disagreed? Which would she have preferred?
