LAW04: Criminal Law (Offences against Property) Defences: Duress

Transcription

1 LAW04: Criminal Law (Offences against Property) Defences: Duress

2 This defence is based on the fact that the D has been forced to commit a crime. The D has committed the crime because he has been threatened with death or serious injury. The D will still have satisfied the actus reus and mens rea of the crime but will have a defence of duress. There are 2 types of duress: 1. Duress by threats; and 2. Duress of circumstances.

3 1. Duress by threats. This is where a person threatens the D with serious violence unless the D commits an offence.

4 Seriousness of the threat. The threat must be one of death or serious injury. A lesser threat will not provide a defence. There can be other threats. Provided there are some serious threats the court can take into account the cumulative effect of all the threats made to the D.

5 Valderrama-Vega (1985) The D was a Colombian who was caught illegally importing cocaine. The D argued that he had done this because of death threats made to him by a mafiastyle organisation and because they had threatened to expose his homosexuality and because he needed the money.

6 The trial judge stated that the defence was only allowed if death/ serious threats were the D's only reason for committing the offence. T h e C A q u a s h e d t h e D ' s conviction because the jury should have been allowed to consider duress. The threat of death/serious injury was one of the reasons D committed the crime and so duress should have been allowed.

7 Threat to whom? It used to be that the threat had to be aimed at the D themselves. But it is now accepted that threats to family and friends can be a basis for duress.

8 Martin (1989) T h e w i f e o f t h e D threatened to commit suicide unless he drove whilst disqualified. The threat to a member of the D's family was sufficient.

9 Conway (1988) Threats were made to a passenger in the D's car. This was accepted as forming the basis for duress.

10 There is no case on whether a defence would be allowed if the threat was made to a complete stranger but it is likely the courts would now allow this.

11 Subjective and objective tests. In deciding whether the defence should be successful or not the jury need to consider a 2 part test: 1. Was the D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? 2. If so, would a sober person of reasonable firmness sharing the characteristics of the accused have responded in the same way? This test was laid down in Graham (1982) and confirmed by the HL in Howe (1987).

12 Martin (DP) (2000) The CA interpreted the first part of the test as being if the D reasonably feared for their safety. So, the jury need to take into account any special characteristics of the D that make him more likely to believe the threats.

13 The D suffered from a schizoid-affective state which led him to believe that things said to him were threatening and that these threats would be carried out. D claimed he had been forced to carry out 2 robberies by 2 men on his estate.

14 The CA quashed the D's conviction. The D's belief that they are being t h r e a t e n e d c a n b e mistaken as long as it is a genuine belief.

15 Hasan (2005) In this case the HL stated that if a mistaken belief is made then the m i s t a k e m u s t b e reasonable. This is only an obiter statement but it is still likely to be followed.

16 The second part of the test is whether the reasonable man would have behaved in the same way as the D.

17 Bowen (1996) This case decided which of the D's characteristics would be relevant to the reasonable man. The D had a low IQ of 68 and he obtained goods by deception for 2 men who said they would petrol bomb him and his family if he didn't do it. The D's low IQ was an irrelevant characteristic when it came to deciding if the D could resist threats.

18 But, the following characteristics could be relevant: 1. Age: very young/old people could be more susceptible to threats; 2. Pregnancy: the additional fear for the safety of the unborn baby; 3. Serious physical disability: could make it more difficult for the D to protect themselves; 4. Recognised mental illness/physical disorder: anything that could make the D more susceptible but not a low IQ; 5. Sex: although the CA do state women could have just as much courage as men.

19 No safe avenue of escape. The D can only use the defence if he is placed in a situation where there is "no safe avenue of escape".

20 Gill (1963) The D claimed he and his wife had been threatened unless he stole a lorry. But there was a period of time where the D had been left alone and could have raised the alarm. The D had a "safe avenue of escape" and could therefore not rely on a defence of duress.

21 Also, if police protection is possible (and not taken) then the defence of duress will not be available. But it is recognised that sometimes police protection might not always be effective...

22 Hudson and Taylor (1971) The Ds were 2 girls (17 and 19) who were prosecution witnesses against a man charged with wounding. In court they lied and said that they could not identify the attacker. They later said that the reason they lied was because another man (with a reputation for violence) had told H that he would "cut her up" if she gave evidence. The CA quashed their convictions for perjury.

23 The prosecution had argued that the girls could have sought police protection. But the CA stated that there are some cases where the police could not give adequate protection. The CA said that in deciding if going to the police was a realistic option for the D the jury should consider the age of the D, the circumstances of the threats and the risks involved in relying on police protection.

24 Hasan (2005) In this case the HL thought the CA's ruling in Hudson a n d Ta y l o r w a s t o o favourable for the Ds. The HL thought that if the threat was not reasonably expected to be carried out immediately then the D could have taken evasive action.

25 The imminence of threat. The threat must be effective at the moment the crime is committed. But the threats don't have to be carried out immediately.

26 Hudson and Taylor (1971) The CA stated that the threat had to be a "present threat". If the threat is "hanging over" the D at the time they commit the offence then the defence of duress will be available.

27 Abdul-Hussain (1999) Several Ds had fled to Sudan from Iraq because of the risk of execution concerning their religion. They feared that they would be sent back to Iraq, so they hijacked a plane which eventually landed in the UK.

28 The trial judge stated that duress was not available because the threat was not immediate enough. T h e C A q u a s h e d t h e convictions. The threat only needs to be imminent, it only needs to be "hanging over them". The CA decided...

29 Threat to make the D commit a specific offence. The defence of duress can only be used if the threats are in order to make him commit a particular offence.

30 Cole (1994) The D claimed he, his girlfriend and child were threatened in order for him to repay money that he owed. So, the D carried out 2 robberies in order to repay the debt. He only committed the robberies because of the threat.

31 The D's conviction was u p h e l d b e c a u s e h e hadn't been told to commit the robberies. There wasn't a sufficient connection between the threats and the crimes.

32 Intoxication and duress. If the D becomes voluntarily intoxicated and mistakenly believes he is being threatened then there is no defence. But if there is no mistake and the intoxication is irrelevant then the D could still use the defence.

33 Self-induced duress. This is where the D has brought the duress on himself through his own actions. For example... the D voluntarily joins a criminal gang and commits crimes. Then the D is forced to commit other crimes that he didn't want to commit. The normal rule is that the defence of duress will not be allowed.

34 Sharp (1987) The D joined a gang who carried out robberies. D claimed that he wanted to withdraw from the robberies before the last one was carried out and a postmaster was shot dead. The CA said that there was no defence. The D knew when he joined that they used violence and so he could not argue duress when threats of violence were used against him.

35 Shepherd (1987) The D joined an organised gang of shoplifters. A group would enter the shop, one person would distract the shopkeeper and the others would steal as much as they could. The D said he wanted to stop but was threatened with violence if he didn't continue. Defence of duress? Yes. Why? The CA allowed the defence because the gang's activity was usually non-violent.

36 Hasan (2005) This case lays down the law on the availability of duress when a D voluntarily associates with others who engage in criminal activity. The D associated with a violent drug dealer. The D was told to burgle a house and steal a large amount of money in a safe. If the D didn't do this both him and his family would be harmed.

37 The HL stated that the defence of duress is excluded where the D: 1. voluntarily associates with others who are engaged in criminal activity; and 2. he foresaw or ought reasonably to have foreseen the risk of being subjected to threats of violence.

38 So, the only way a defence would be allowed for a situation such as self-induced duress would be if... the D did not foresee any threat of violence; and a reasonable man would not have foreseen this either.

39 2. Duress of circumstances. It is only "fairly" recently that the courts have recognised a defence of duress of circumstances. Whereby the D's circumstances provide a "threat" of death or serious injury. It was first recognised as a defence in...

40 Willer (1986) The D and his passenger were driving down a narrow alleyway when the car was surrounded by youths. D realised the only way to escape was to drive on the pavement. D did this at approx. 10 mph and drove to a police station to report the incident. D was charged and convicted of reckless driving. The CA stated that the jury should have been allowed to consider duress. No-one actually threatened D but he did find himself in threatening circumstances.

41 Conway (1988) A passenger in D's car had been shot at by 2 men two weeks earlier. D's car was stationary when the passenger saw 2 men running towards the car. He thought they were the same men who'd shot at him and told D to drive off. D was charged with reckless driving. The CA quashed the conviction and said duress of circumstances could be allowed if the D acted in order to avoid a threat of death or serious injury.

42 Martin (1989) D's wife threatened suicide unless he drove his stepson to work. D was disqualified from driving. In this case it was ruled that duress of circumstances should use the same subjective and objective test in Graham and Howe as duress of threats.