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General Defences - Duress by threats and Duress by circumstances &…
General Defences - Duress by threats and Duress by circumstances & Necessity
Duress by threats ---> D has been threatened by someone to commit a crime or they will be hurt or even be killed. Results in full acquittal.
The threat must be of death of serious injury.
The threat must be aimed at D or someone they are responsible for.
Voluntary association could prevent the defence from working.
The threat must be immediate or almost.
If D has chance to escape they must take it. ---> Expected to seek police protection if possible.
The threat must be specific.
The SOBER MAN OF REASONABLE FIRMNESS must do the same.
Co___ ---> The threat must be accompanied by an order to commit a specified crime. It is not sufficient that the D has felt the need to commit a crime to meet a demand for money.
Hu
& Ta
--> It was accepted that police protection might not always be effected.
The defendant may not rely on duress to which he has voluntarily laid himself open. D loses the benefit of a defence based on duress if he ought reasonably to have foreseen the risk of threats by associating with known criminals. The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so.
R v G
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---> Established the Graham test to determine whether the threat was so great as to overbear the ordinary powers of human resistance.
2 part test --->
Was D forced to act as he reasonably believed he had cause to fear death or serious injury?
Would the sober man of reasonable firmness (SMRF) sharing D's characteristics have acted the same?
Duress by Circumstances---> Where D is fearing death or serious injury but is NOT A PERSON. It is from their surrounding circumstances and gives a full acquittal if successful.
C
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---> D drove recklessly to avoid police whom he thought they were going to shoot the passenger but didn't know they were police, the passenger had been attacked previously. --->Not guilty as he drove recklessly to protect the passenger.
M
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---> Disqualified driver drove step son to work after he had overslept fearing his would lose their job which would cause his wife to commit suicide.
2 part test --->
Was D forced to act as he reasonably believed he had caused to fear death or serious injury?
Would the sober man of reasonable firmness (SMRF) sharing D's characteristics have acted the same?
Necessity ---> D is not threatened at all but they are choosing to intervene in order to prevent the greater evil from occurring. D is justifying their actions by saying it was necessary to do it.
Re
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(Mental patient sterilisation) 1990 ----> Gained approval to sterilise a patient with severe mental disability.
Re
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---> Doctors sought the leave of the court to separate conjoined twins as the separation was necessary to save the life of one of them. If they remained conjoined both would die. Jodie had a good chance of 'fairly normal life'. Mary was using Jodie's heart and lungs so Mary had no prospect of an independent life. If they separated Mary would immediately die.
S
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---> D a former M15 officer disclosed information and sought to rely on the defence of necessity or duress of circumstances and claimed his disclosure had been necessary to ensure than certain malpractices were ended. person ----> It is not available where D claimed that someone somewhere might some day have suffered if he not acted as he did. Persons for whom the defendant responsibility, the threat of violence must be to the defendant or a person for whom the responsibility or person for whom the situation makes him responsible and victim was not property identifiable.
3 part test --->
Was it to prevent a greater evil?
Were their actions reasonable and proportionate?Can they identify the victim?