7. GENERAL DEFENCES

Duress of threats meaning

A general defence in criminal law

A-G Whelan : sets out definition of DOT

The D commits a crime as they were forced to do so via;

• threats of death

• serious injury

The threat is so serious it overbears ordinary powers of human resistance

Can be a complete defence = not guilty

R v Gotts

duress of threats

Duress can’t be a defence for am

R v Gotts

duress of threats

Duress can’t be a defence for am

R v Gotts

duress of threats

Duress can’t be a defence for am

1. Duress of threats steps

R v Hasan

1. Threat of death or serious injury (GBH)

• not property

1. To D or someone close to D

• someone d reasonably believes they have a responsibility to protect

1. D;s beliefs / response is reasonable (OBJECTIVE + SUBJECTIVE)

• would reasonable person respond the same way? Objective

• Characteristics of D (old age) —- no intoxication

• What did D know at the time

1. Crime is a direct result to the threat

1. D couldn’t take alternative action

• Immediately threat ?

• Time lapse between threat and crime is considered + impacts imminentness

1. D was not self induced

• didn’t put themselves in situations subjected to threats

Explain characteristics of ordinary man for duress of threats

R v Hasan

Sets out 6 tests of duress of threats

R v Hasan

Sets out 6 tests of duress of threats

R v Valderrama

Part 1 of duress of threats

• death/serious injury threat to d + fam

• Finnancial ruin

• Exposure of sexuality

= all threats considered as long as death/serious injury threat is made

• but for

R v Cole

Part 4 of DOT

crime must be directly caused by threat

R v hurst

Part 5 of DOT

D couldn’t take evasive action + threat is active

R v Sharp

Part 6 of DOT

threats were self induced by D

What is duress of circumstance

Full defence

R v Miller

D commits crime bc of circumstances / situation

• makes them believe they must act to avoid death/personal injury

Emergency situation forces them to act

• the pressure comes from dangerous situation, not from committing the crime

Duress of threat vs duress of circumstance

DOT:

• specific person is threatening them of death/ serious injury

DOC:

• a situation(extraneous circumstances) forces D to act to avoid death / serious injury

what is self-defence

complete defence

D uses reasonable force to protect:

• themselves

• another person

• property

• or to prevent crime

D to use reasonable force where D honestly believes force is necessary to defend themselves, another person, property, or to prevent crime.

complete defence meaning

D is not guilt if succeeds

statute for self defence

Criminal law act 1967: s3

• a person must use reasonable force in circumstances to prevent crime/ make lawful arrest

what does criminal law act 1967 say for self defence

A person must use reasonable force in the circumstances to prevent crime/ make lawful arrest

list tests for self defence

1. Was force necessary? Subjective

2. was force reasonable? Objective

Explain use of necessary force: self defence

1. If D honestly believed they needed to use force

• subjective

R v Gladstone Williams

BUT : Drunk mistake dont count ! (voluntarily)

• R v O’Grady

2. D doesnt have to wait to be attacked

• if they honestly believed an attack was going to happen

• =pre -emptive (acting to prevent harm)

• Beckford v R

2. No stict duty to retreat

• D doesnt lost defence if they didnt run away instead

• but doesnt always justify fighting

• Court access whether D coudlve ran away + avoid violence

• R v bird

Explain use of reasonable force: self defence

1. Even if force is necessary, was amount of force reasonable??

• objective: Case: R v Owino

2. Recognises that Force can be instinctive : not calmly calculated

• unexpected danger = flexibility in emergency situations

• Case: Palmer v R

• doesnt allow for excessive force tho

3. Excessive force is NOT acceptable ❌

• Too much force than what was reasonably needed

• using force after danger ended = revenge rather than defence

• s76

• Case: R v Clegg

Explain householder cases in self defence

D uses force against home intruder

= wider protection

Force can possibly be disproportionate but not grossly disproportionate

• completely excessive

self defence: householder case vs ordinary situations

Ordinary:

Amount of force shouldnt be disproportionate at all

householder

Can be disporportionate but not grossly

what is necessity

D breaks law/ comits crime for the greater good

• to prevent greater harm

• = necessary

Resoponse was:

• reasonable: no other alternative could be taken

• proportionate: matched seriousness of danger

not a defence for murder: Dudley + Stephens

limitedess of necesity

If too wide = excuses crimes

only works for exceptional issues

• unusual / very serious

Describe necessity test

1. Was D trying to avoid serious harm?

• real danger, not inconvenience

2. Harm avoided > harm caused by D?

3. No other reasonable legal alternative?

4. Proportionate response?

What doesnt necessity defend

murder: Dudley + stephens