defences 4 – duress and necessity in this lecture, we will consider the defences of: duress by...

Defences 4 – Duress and Necessity

• In this lecture, we will consider the defences of:

• Duress by threats

• Necessity

• Duress of circumstances

Duress by threats

• Requirements for the defence:• Threat must be of death or serious

injury (Hudson & Taylor (1971)).• A threat of serious psychological harm

is not sufficient (Baker (1997)). Nor will threats relating to damage to property, financial ruin or to expose sexual immorality suffice.

• If threats of various consequences, some of which are of death or serious injury, the court may take into account the cumulative effect of all the threats, not merely those of death/serious injury, provided D would not have committed the offence but for the threats of death/serious harm (Valderrama-Vega (1985)).

Will a threat directed against a 3rd party suffice?• Relevant caselaw:• Ortiz (1986) - court assumed that a threat to a

wife and child would suffice.• Wright (2000) - threat to D’s boyfriend was

sufficient as he was a person for whom D would reasonably regard herself as responsible.

• Dicta in judgment of CA in Shayler (2002) to effect that the defence extends to those for whom D reasonably regards himself as being responsible.

Will a threat of future harm suffice?

• If the threat is of harm in the future this may give D the opportunity to take steps to avoid the threat by alerting the police or making his escape.

• Example• X threatens D that if he does not rob

the Lloyds Bank next day, he will then beat him up.

• Hudson & Taylor (1971) - the defence will not succeed if D fails to seek protection or to avail himself of any other opportunity which was reasonably open to him to render the threat ineffective.

• See also Heath (2000).

• Can D be said to be compelled to commit the offence if the threatened harm will not occur immediately?

• Hudson & Taylor - where D must make a decision there and then whether to commit the offence as he has no chance to delay matters, fact that the threats were operating on his mind when he committed the offence would suffice.

• Can D be said to be compelled to commit the offence if the threatened harm will not occur immediately?

• Abdul Hussain (1998) - the threat does not have to be of immediate death/serious harm but must be "imminent." i.e. liable to happen soon.

Must there be a direct connection between the threat and the offence

charged? • Would it be sufficient that X says to D: • (a) unless you get my money by Friday, I will

beat you up?• Or• (b) would he have to specify that D commit

robbery to get the money?• Or • (c) must X say to D, unless you rob the HSBC on

Saville Row tomorrow, I will beat you up?• Answer is b

• Relevant caselaw:

• Cole (1994);

• Ali (1995)

Two stage test for duress

• Test laid down in Graham (1982) and approved in Howe (1987)HL

• (a) Was D, or may he have been, impelled to act as he did because, as a result of what he [reasonably] believed X had said or done, he had good cause to fear that if he did not so act X would kill him or cause him serious physical injury?

• AND• (b) If so would a sober person of reasonable

firmness, sharing the characteristics of D. have responded to whatever he reasonably believed X said or did by taking part in the offence.

What if D was mistaken in believing he was under threat or mistakenly

believed the threat was greater than it was?

• Relevant caselaw:• Safi (2003) – no need for an actual threat.• Martin (2000) – D’s belief need only be

honest, not reasonable.This is line with the general trend in the criminal law towards a subjective approach but is inconsistent with Graham and Howe and the statements concerning the Graham direction in Safi and R v G. Position is, therefore, unclear.

In applying this test, with which of D's "characteristics" can the "sober

person of reasonable firmness" be invested?

• The characteristic must be such as to make D less able to resist the threats than someone without the characteristic (Bowen (1996)).

• The reasonable person can be invested with the characteristics of D’s age and sex if they are relevant (Ali).

• Pregnancy, where there is a fear for the unborn child (obiter in Bowen (1996)).

• A recognised mental illness, mental impairment or psychiatric condition, such as post traumatic stress disorder leading to dependent helplessness (another e.g. would be battered wife syndrome, (Emery (1993)) provided people who suffer from this condition are generally more susceptible to pressure and threats (obiter in Bowen).

• He cannot be invested with a characteristic:• Of being emotionally unstable or in a grossly

elevated state (Hegarty (1994)).• Which is due to self-imposed abuse, such as

alcohol, drugs or glue-sniffing (Flatt (1996)).• Of being naturally unusually pliable or

vulnerable to pressure (Horne (1994)).• Of low IQ short of mental impairment

(Bowen).

The scope of the defence• In Hudson, duress was said to be a defence on

all charges except possibly treason, and murder. The HL in Howe (1987) confirmed that duress is not available as a defence to murder either for the actual killer or a secondary party and in Gotts (1992) their Lordships held that it is not available as a defence to attempted murder either.

• It is available to s.18 for which the mens rea of intent to do gbh is sufficient for murder. Clear inconsistency.

Voluntarily associating with criminals

• The defence may not be availabile to members of an unlawful association, organisation or gang.

• Relevant caselaw:• Sharp (1987)- D cannot rely on the defence

of duress where the duress emanates from a member of a criminal organisation, which D has voluntarily joined.

• Shepherd (1988) - It is not just voluntarily joining a criminal gang which will preclude the defence. What is important is whether D knew when he joined that the organisation had a propensity to violence.

• Defence is also unavailable where D has voluntarily associated with those who make the threats against him, see Ali.

What is the extent of the knowledge required by D when he joins the

organisation or begins associating with the person(s) who make the threats?

• Baker & Ward (1999) – defence unavailable where D knew when he joined that he might be subject to violence/threats of violence to force him to commit the type of offence charged.

• Heath (2000) – what is required is D’s knowledge that he was likely to be subjected to violence/threats of violence to force him to commit [any] crimes.

• Harmer (2002)– what is required is knowledge on the part of D that he might be subjected to the risk of unlawful violence – not necessary to prove that he realised he might be required to commit a crime.

• R v Z (2003) – court followed Baker & Ward but stated that the words “offence of the type charged” should be interpreted as meaning whether D anticipated his connection with the criminals could lead to him being pressured into committing offences of the seriousness of the offence with which he was charged.

Necessity

• The basic nature of this defence is that it operates in cases where D deliberately chooses the lesser of two "evils", which results in an offence, in order to avoid a greater "evil".

Scope of the defence of Necessity

• The long-standing position is that necessity is a defence of restricted scope.

• There are a number of statutory defences based on "necessity" e.g.. See s.3 Criminal Law Act 1967; s.1 Abortion Act 1967; and s.5 (2)(b) Criminal Damage Act 1971.

• Also, the common law has long recognised excuses based on "necessity", e.g. self-defence and defence of property.

• The courts' reluctance to recognise necessity as a general defence in the criminal law is reflected in Dudley & Stephens (1884).

• But occasionaly the courts will recognize the defence, see Re A (Children) (2000).

Duress of circumstances• Considerable progress has been made in a

series of recent cases towards a more general, if limited, defence of necessity in the form of "Duress of Circumstances."

• This arises where D commits an offence to avoid death or serious bodily harm to himself or a third party but the threat of such harm does not take the form of "do this, or else" (as is the case with the long-standing defence of duress by threats discussed above.) The relevant threat may come from another but it would, presumably, be enough that it arose from, e.g. a runaway vehicle or flood wave.

• Requirements for defence:

• The threat which must come from a source external to D (Rodger & Rose (1998)).

• The courts adopt a 2 stage test similar to that in duress by threats, see Martin (1989):

• (a) Was D or may he have been, impelled to act as he did, because of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious bodily harm would result AND

• (b) If so, would a sober person of reasonable firmness, sharing the characteristics of D, have responded to the situation by acting as D did.

• In Cairns (1999), the CA affirmed the direction in Martin that the belief must be a reasonable one.

• But see Martin (2000) on duress by threats.• The court further held that if D reasonably

believes there is a threat, it is irrelevant that there is no threat in fact.

• D must also have acted reasonably and proportionately in responding to the threat as he did (Abdul Hussain).

The scope of the defence of duress of circumstances

• The defence developed in the context of road traffic offences. However, in Pommell (1995), the CA declared that the defence applies to all crimes except murder, attempted murder and some forms of treason and it was considered available as a defence to hijacking in Abdul Hussain and to s.20 OAPA 1861 in Cairns.

Might the courts expect too high a standard of heroism from ordinary

people? • Prof Smith said:

•  “The law has lost touch with reality if it condemns as murder conduct which right -thinking people regard as praiseworthy.”