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Defences - Duress


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Duress
This is a defence which implies that D had no choice in their actions, and therefore the actus reus has been invalidated as the act is no longer voluntary.
Duress of threats
Due to threats administered by another, D has no choice in their actions. However, case law has restricted its use by introducing a series of tests and other criteria.
Lynch
A man drove a car to a certain place under threats from an armed gunman, and waited there while the armed gunman and his associates killed a policeman then drove them away. The house of lords allowed his defence of duress (controversial decision due to a 3-2 majority) for murder. This has been since overruled by Howe.
Graham
A homosexual lived with his boyfriend and wife. D's claim that he was under duress wasn't accepted by the jury. A two part test has been introduced because of this case.
Graham's Two part test
This specifically focusses on duress of threats. Firstly there is an objective test that D must be young, female, pregnant or have a disability. Secondly, D must have wholly believed that he was really under duress (subjective) to pass the test.
Howe
D took part with others in two separate murders - on a third occasion the intended victim escaped. D appealed and the House of Lords used the Practice Statement to overrule Lynch - nobody can use duress as a defence to murder.
Gotts
D's father ordered him to kill his mother, and threatened to shoot him if he didn't do so. D therefore stabbed his mother and injured her seriously; he didn't actually kill her. Applying an obiter dictum from Lord Griffiths in Howe, the HoL decided 3-2 that duress isn't available to a person charged with attempted murder.
Valdmerra-Vega
D was charged with importing prohibited drugs, and pleaded duress; Colombian drug dealers had threatened to kill or injure D and his family if he failed to comply. Furthermore, he faced financial pressure and had been threatened with disclosure of his homosexuality. CA ruled that only the threat of death or serious harm was valid, and the other two threats would not suffice for duress.
Cole
Tells us that the crime has to be nominated by the person administering the threat. For example, if someone demands money but doesn't specify where to acquire it, if D robs a bank they won't be able to plead duress successfully.
Duress of circumstances
This implies that D had no choice in their actions due to the circumstances they found themselves in. Case law has developed and widened its availability.
Kitson
D was a passenger in his brother–in-laws car. He was intoxicated and had fallen asleep. He awoke to find that the driver had disappeared and the car was coasting down a hill. He grabbed the steering wheel and managed to safely steer the car and stop. His conviction for driving under the influence of alcohol was upheld. This was the first case which suggested a new defence which differed from necessity should be introduced.
Willer
D was charged with reckless driving after driving on the pavement at 10mph to escape a gang of youths surrounding the car. The assistant recorder ruled that a defence of necessity wasn't available to him on those facts. On appeal, the court held that the jury ought to have been left to decide whether "the appellant was wholly driven by force of circumstances... i.e. under duress".
Conway
D was in his car with a passenger who had been attacked some weeks previously. Two men approached as he drove off. The two men pursued in another car and so he continued to try to escape by driving recklessly. The two men were plain-clothes policemen; D claimed he was trying to protect his passenger. Held that the jury should have been allowed to consider duress of circumstances as a defence - not guilty.
Martin
D, a disqualified driver, drove his stepson to work fearing that his stepson would lose his job otherwise, causing his wife to commit suicide. Duress of circumstances should have been considered as a defence, on appeal. Not guilty.
Pommell
D was found in bed with a loaded machine gun. D claimed he'd taken it off another man to prevent him from using it, and that he was going to take it into the police in the morning. Held that he should have been allowed to raise duress of circumstances as a defence, but that the jury would have to factor in his behaviour with the gun to decide if the duress has ceased. Widened the defence of duress of circumstances to more than just driving offences.
Re A
A civil case. Siamese twins Jodie and Mary were joined in such a way that they shared vital organs which could not support life for both of them. Medical opinion broadly agreed that they would both die in a matter of months if nothing was done. The parents opposed the operation for religious reasons; doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a "normal" life but causing the immediate death of Mary. CA gave leave for the operation to proceed, and said there are three conditions for necessity to operate as a defence.
Conditions for necessity
These were given in Re A, in which Sir James Stephen was quoted. A) The act is needed to avoid inevitable and irreparable evil; B) no more evil should be done than is reasonably necessary for the purpose to be achieved; C) the evil inflicted must not be disproportionate to the evil avoided.