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DURESS NECESSITY

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					Topic 11
 Topic 11




     Duress and
      necessity
Topic 11
Duress




           Duress
Topic 11
Duress


                   Introduction
 Duress is a complete defence for most crimes. The burden
 of proof is on the prosecution to disprove that the
 defendant was under duress.
 Duress is not available for the offence of murder (R v
 Howe, 1987), nor is it a defence for attempted murder (R
 v Gotts, 1991).
 There are two types of duress: duress by threats and
 duress by circumstances.
Topic 11
Duress


              Duress by threats
 For the defence of duress by threats, the defendant has
 both the actus reus and mens rea for the crime, but
 conviction is escaped because his or her will is overborne
 by personal threats or by threats to family members or
 people for whom the defendant is responsible. The ability
 to use this defence has been reduced since the case of R v
 Hasan (2005).
Topic 11
Duress


               R v Graham (1982)
 In R v Graham (1982) the defendant lived with his wife and
 homosexual lover. His lover threatened him into killing his wife. The
 Court of Appeal did not regard the threats as sufficient to constitute
 the defence of duress. In this case, Lord Lane devised a two-part
 test for duress by threats (known as the ‘Graham test’), with both a
 subjective and an objective element.
 For duress of threats to succeed, the jury needs to consider the two
 key questions raised by Lord Lane CJ:
 • Was the defendant impelled to act in the belief that he or she or
 others would be killed or physically injured if he or she did not
 comply with the threats?
 • If so, would a sober person of reasonable firmness sharing the
 same characteristics of the defendant have acted in the same way?
Topic 11
Duress


       Seriousness of the threats
 Threats of death and personal injury are necessary for the
 defence of duress.

 R v Valderrama-Vega (1985)
 The defendant was caught smuggling cocaine from Colombia. He
 claimed he was under duress from drug barons in Colombia who
 threatened to kill him and his family and to expose the
 defendant’s homosexuality. The defendant would also face
 financial difficulties if he did not help smuggle the drugs. The
 court held that only the threats to him and his family were able
 to afford the defence of duress.
Topic 11
Duress


Unavoidable and imminent threat
 The defendant must not be able to avoid the threat. This
 means that he or she cannot use the defence of duress if
 he or she has time to inform the police or to avoid the
 crime that he or she has been threatened to do.
 It does not matter if there was no actual threat, as long as
 the defendant honestly thought that there was an
 imminent threat. R v Hasan (2005) stated that the mistake
 of the threat must be honest and reasonable.
Topic 11
Duress


           Self-induced duress
The defence of duress will not be available where the
defendant has voluntarily associated with criminals. The
defendant should have reasonably foreseen that he or she
might be forced to commit crimes by threats or violence (R
v Hasan, 2005).
Topic 11
Duress


              R v Hasan (2005)
 The defendant was the driver for a prostitute whose
 boyfriend threatened him with violence if he did not
 commit a burglary. The defendant was caught and tried to
 use the defence of duress. The House of Lords did not
 allow the defence, as his duress was self-induced,
 regardless of whether he had foreseen that he might be
 forced to commit crimes.
 All that is necessary is that the defendant foresaw or it
 was reasonable to foresee that he or she might be forced.
Topic 11
Duress


             R v Boden (1996)
The court will take into account the age and sex of the
defendant, as this may affect his or her ability to resist
pressure. The jury can also take into account a defendant’s
physical disability or mental illness.

In R v Boden, the defendant was of low IQ and it was
argued that this characteristic made him more susceptible
to threats. The Court of Appeal did not allow this to be
taken into consideration.
Topic 11
Duress


       Duress by circumstances
 Like duress by threats, this type of duress requires fear of
 imminent death or serious injury (R v Baker and Wilkins,
 1997). It has mainly been used as a defence for driving
 offences, where defendants claim to have felt forced to
 commit a driving offence because of the circumstances
 that they found themselves in, rather than because they
 had been threatened to do so. The defence has been
 extended to other crimes, e.g. possession of a firearm in R
 v Pommell (1995) or hijacking in R v Abdul-Hussain
 (1999).
Topic 11
Duress


             R v Conway (1989)
 The defendant was in his car with a passenger when two
 plain-clothed policemen started running towards them. Not
 knowing that they were policemen, the defendant and the
 passenger feared that they were in immediate threat of
 personal injury because the passenger had been recently
 threatened as such. The defendant drove off at high speed.

 The Court of Appeal quashed the conviction for reckless
 driving, as the judge should have allowed the jury to consider
 duress of circumstances as a possible defence at the trial.
Topic 11
Necessity




            Necessity
Topic 11
Necessity


                  Case law (1)
 The defence of necessity is very similar to duress of
 circumstances and was considered not to exist until the
 case of Re A (2000).
 The case of R v Dudley and Stephens (1884) did not allow
 the defence for murder, when four sailors were
 shipwrecked and had been floating miles from land for 20
 days. They killed and ate the cabin boy who had become
 unconscious. Their charge of murder was upheld and the
 defence of necessity (the fact that they would have died if
 they had not eaten the victim) was not allowed.
Topic 11
Necessity


                   Case law (2)
 A later case also did not allow the defence of necessity, as
 Lord Denning was concerned that people would use the
 defence too much, e.g. if they were hungry it would be
 necessary for them to steal food. In Southwark London
 Borough Council v Williams (1971), a family that was
 evicted from an empty council house could not plead the
 defence of necessity in that the members would be
 homeless if they were not allowed to squat.
Topic 11
Necessity


                   Re A (2000)
 The Court of Appeal established the defence of necessity
 when it authorised the separation of conjoined twins Jodie
 and Mary. The court was involved in this case as the
 conjoined babies would not survive if they were not
 separated. It was known, however, that if they were
 separated, one of the babies would die. The parents of the
 babies did not want them to be separated but the court
 authorised the operation.
Topic 11
Necessity


              Test for necessity
 The test for necessity requires that an act was necessary
 to avoid inevitable evil, no more was done than was
 necessary, and the evil inflicted was not disproportionate
 to the evil avoided.
Topic 11
Evaluation: duress and necessity




           Evaluation of
            duress and
             necessity
Topic 11
Evaluation: duress and necessity


Civil law and similarity of defences
 The defence of necessity is criticised because the leading
 case (Re A, 2000) involved the civil law. Furthermore,
 because it is so similar to duress of circumstances, many
 consider that it need not be a separate defence. Lord Woolf
 thought that necessity and duress of circumstances were
 different words for the same thing.

 However, the case of Re A illustrates one difference, in that
 necessity is available as a defence for murder whereas duress
 is not.
Topic 11
Evaluation: duress and necessity


               Self-induced duress
 The case of R v Hasan (2005) wanted to restrict the use of the duress
 defence, so that only people who really deserve it can use it. The test
 for deciding if the defendant voluntarily exposed himself or herself to
 risk, and therefore had self-induced duress, is objective and could mean
 that under this defence no one can associate with a criminal of the off-
 chance that he or she will be threatened.
 Baroness Hale did not agree with the majority in the House of Lords, as
 she feared that victims of domestic violence would be regarded as
 having self-induced duress if their violent partners forced them to
 commit a crime. Baroness Hale thought that the test for whether the
 duress was self-induced should be subjective, in that the defendant
 foresaw a risk that he or she may be forced to commit a crime.
Topic 11
Evaluation: duress and necessity


            Duress, murder and
             attempted murder
 The fact that duress is not available for the offence of
 murder (R v Howe, 1987) and attempted murder (R v
 Gotts, 1991) has been criticised by the legal academics
 Smith and Hogan. The 1997 Law Commission report
 ‘Defences of General Application’ also argues that duress
 should be a defence to all crimes. In 2005, the Law
 Commission recommended that duress should be a
 defence to the proposed new crime of first-degree murder.
Topic 11
Evaluation: duress and necessity


               The Graham test
The objective nature of the second part of the Graham test
is restrictive, as it does not take into account many of the
defendant’s characteristics. It particularly limits any
mental problems to recognised psychiatric illnesses only.

It has been suggested that it may be better if the defence
of duress were abolished and instead taken into account as
a mitigating factor when the judge decides the sentence.

				
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