Dudley & Stephens- the defence was rejected for the murder of the cabin boy, Richard Parker
Lynch V DPP- the defence was allowed for being a secondary party to a murder in this case as D was the driver as opposed to an active participant in the killing
What test should be applied for every case where duress is claimed?
Graham 2 part test from R v Graham, the jury should consider:
Whether or not D was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger (subjective test)
Whether a sober person of reasonable firmness sharing D’s characteristics would have responded in the same way to the threats? (objective)
Howe?
Howe held that duress wouldn’t be available to D who committed murder either as principle or an accomplice. It was stated: man under duress rather die himself than kill an innocent, if the appeal and defence were allowed then the House would have to prepare to call Dudley and Stephens bad law which it wasn’t prepared to do- a person cannot be excused from one type of pressure on his will (duress) rather than the other (necessity). D cannot claim he’s choosing the lesser of two evils. Obiter it was stated if duress is not allowed for murder then it isn’t for attempted murder.
Gotts?
Uses what Howe said obiter to justify the rejection of the defence of duress for attempted murder
Valderrama-Vega where death threats, the cumulative effective of them, and that the death threat need not be the sole reason
Cole where the threat must be to commit a specific offence
Hudson and Taylor where there must be no safe avenue of escape and must be imminent
Abdul-Hussain?
Abdul-Hussain where the threat needn’t be immediate but must be imminent. It was stated that the defence duress, by threats or circumstance, will be available expect for attempted murder, murder and treason.
It’s available for hijacking aircraft although in such cases the terror induced in innocent passengers will generally raise issues of proportionality for determination.
scope remains imprecise
the execution of threat need not be immediately in prospect
time between the peril and D’s act is relevant but not a determinative factor
Bowen?
Stated the 5 exceptions as characteristics to be taken into account for duress: age, sex, pregnancy, serious physical disability, recognised medical condition or psychiatric condition. These are more susceptible to threat than the 'ordinary person'.
Self induced duress?
Not available when D commits a crime as a consequence of threats from members from violent gangs which they have voluntarily joined. D who joins a criminal association which could force him to commit crimes can be blamed for his actions. Sharp where if D had knowledge of the organisations nature and joined voluntarily then he's guilty. However if D joined, depending on the nature and D's knowledge of it, if he was unaware of any propensity to violence duress may be available (Shepard).
What is duress of circumstance?
Different to duress by threats in that it's the circumstance or situation rather than the individual that poses the threat so some restrictions on duress of threats don't apply. Many duress of circumstance offences involve driving offences
What's the law unclear on in terms of duress of circumstance?
The related defences of duress of circumstance and necessity
Kitson
shows how little difference there is between duress of circumstance and necessity
First time defence of duress of circumstance was used, but wasn't referred to as such...?
Willer- could just be necessity
Duress of circumstance fully established?
Conway
What do many duress of circumstance cases adhere to as laid down in Abdul-Hussain?
The rule of proportionality as the crime they committed was a similar level of threat
What extra elements of duress of circumstance were established in the cases of Pommel and Cairns?
In Pommel a delay/gap may stop duress of circumstance being viable. Cairns established that if D's mistaken belief was reasonable then he can afford the defence.
Difference between duress of circumstance and duress by threats?
duress of circumstance is duress due to a situation that they're in and duress by threats is duress through threats made to them
The doctrine of necessity- is it the same as duress of circumstance?
Dudley and Stephens- necessity defence rejected but referred to
Buckoke- Lord Denning stated obiter necessity should be available to firefighters who broke speeding laws attending an emergency
Re F (mental patient: sterilisation)- HoL gave permission for sterilisation of a mental patient, Lord Brandon stated that it wasn't just necessary it was a doctors 'common duty'
Re A- HoL permission to separate conjoined twins
Shayler- HoL upheld CA's decision that a defence of necessity was available
What do Shayler, Quayle and Altham show about necessity?
These are ongoing situations, not a threat or specific thing. Quayle (confirmed in Altham) is good for drawing the line and is a good ruling as the use of drugs can't be justified
Brooke LJ in Re A confirmed the criteria for necessity:
the act is necessary to avoid inevitable and irreparable evil
no more should be done than is reasonably necessary for the purpose to be achieved
the evil inflicted must be proportionate to the evil being avoided