60 Questions
What is a necessary condition for the duress defence to be available?
The threat was to cause death or serious injury to the defendant or their family
In R v Hasan, what was the defendant's relationship to X?
D was a minder for X's prostitute girlfriend
What is the test for determining whether the threat is sufficient for the duress defence?
Whether the threat was objectively reasonable
What is not a requirement for the duress defence?
The threat was made directly by the person who stood to gain from the offence
What is the result of D's prior fault in forming a relationship with the person making the threat?
The duress defence is not available
What is the result of the threat not being imminent?
The duress defence is not available
What is the requirement for the response to the threat?
The threat must be a substantial cause of the offence
What is the result of the defendant's honest belief that the threat existed, even if unreasonable?
The duress defence is not available
What type of threat does not activate the duress defence?
A threat from oneself
What is the result of the defendant forming a relationship with the person making the threat?
The duress defence is not available
What is the circumstance that D claimed led to her committing perjury in the trial?
Threat of being cut up by someone in the public gallery
What is the primary standard used to determine whether a reasonable person would have acted as D did in a duress situation?
Objective, with some consideration of personal characteristics
What was the outcome of the R v Graham case?
D's steadfastness was considered irrelevant due to the Valium
In what way does duress by circumstances differ from duress by threats?
The threat/demand comes from circumstances, not another party
What was the outcome of the R v Willer case?
The court allowed the appeal and held that duress was applicable
What is the primary requirement for duress by circumstances?
Circumstances that override the individual's will
What was the outcome of the R v Quayle case?
The court rejected the defence of duress
What is the relevance of personal characteristics in determining duress?
They are relevant in determining the individual's ability to resist a threat
What is the purpose of the objective standard in duress cases?
To assess whether a reasonable person would have acted as D did
What is the limitation of the duress defence, as seen in R v Hudson and Taylor?
It does not apply to threats that are not imminent
What is the main reason defences are established in the law?
To account for important contextual factors in offence definitions
What is the key difference between a denial of offence and a defence?
A denial of offence claims a lack of responsibility, while a defence claims an excuse or justification
What is the primary focus of the insanity defence?
To determine whether the defendant lacks responsibility due to a defect of reason
What is the main difference between the M'Naughten rules and the R v Sullivan case?
The M'Naughten rules are used for insanity as a denial, while the R v Sullivan case is used for insanity as a defence
What is the main characteristic of the duress defence?
It is an excusatory defence, where the defendant's actions are seen as morally wrong, but excused due to circumstances
What is the key requirement for the duress defence to apply?
The threat must be serious and imminent, and the defendant must have no reasonable alternative but to commit the offence
What is the exception to the duress defence?
Offences of murder, attempted murder, and serious forms of treason
What is the evidential burden in duress cases?
The defendant bears the evidential burden to provide some evidence of duress, then the burden of proof is on the prosecution to disprove it beyond a reasonable doubt
What is the main difference between duress by threats and duress by circumstances?
Duress by threats involves a threat to someone, while duress by circumstances involves a threat of immediate danger from circumstances
What is the relationship between automatism and the insanity defence?
Automatism is a denial of offence, where the defendant claims they did not commit the offence
Duress is a defence that negates the actus reus of an offence.
False
The insanity defence is a complete defence that can lead to a full acquittal.
True
The M'Naughten rules are used to determine whether the defendant was under duress when committing the offence.
False
The defendant bears the burden of proof to disprove duress beyond a reasonable doubt.
False
The duress defence is available for all types of offences, including murder and treason.
False
The defendant's response to the threat is irrelevant in determining whether the duress defence applies.
False
The insanity defence is a denial of offence, whereas the duress defence is a defence to the offence.
True
The defendant's personal characteristics are irrelevant in determining whether the duress defence applies.
True
The duress defence is only available where the threat is directed at the defendant personally.
False
The objective standard is used to determine whether the defendant's belief in the threat was reasonable.
True
In R v Gotts, the court held that the defence of duress is available for attempted murder.
False
If D puts themselves in a position where they need the defence of duress, it is always available.
False
According to R v Hasan, the threat must be to cause death or serious injury to D themselves.
False
In R v Safi, the court held that objective evidence of a threat is always necessary for the defence of duress.
False
In R v Rodger and Rose, the court held that the threat can be internal, coming from D themselves.
True
In R v Cole, the court held that the threat must specify the exact offence to be committed.
True
In R v Ali, the court held that prior fault in forming a relationship with the person making the threat can lead to the defence of duress being unavailable.
True
In R v Valderama-Vega, the court held that the threat must be the sole cause of the offence.
False
The defence of duress can be available for any type of threat, including internal threats.
False
The imminence of the threat is not a requirement for the defence of duress.
False
A threat of being cut up is not considered imminent if it cannot be carried out immediately.
False
A person's IQ is a relevant characteristic in determining whether they acted under duress.
False
Duress by circumstances is only applicable when there is a specific party threatening the defendant.
False
A person's prior fault in forming a relationship with the person making the threat is a defence to duress.
False
The test for duress asks whether a sober person would have acted as the defendant did.
True
Duress by threats and duress by circumstances have different requirements for the nature of the threat.
False
The duress defence is only available when the threat is made by a specific person.
False
A threat of death or serious injury is not sufficient to activate the duress defence if it comes from internal circumstances.
True
The primary standard used to determine whether a reasonable person would have acted as the defendant did in a duress situation is subjective.
False
A person's response to the threat must be objectively reasonable to activate the duress defence.
True
Study Notes
Defences and Their Importance
- Defences are concessions to the strictness or potential unfairness of offence definitions
- They acknowledge contextual issues or factors of human frailty
- Defences are used when the AR (actus reus) and MR (mens rea) are established, but there is an excuse or justification to avoid liability
Available General Defences
- Insanity
- Duress
- Public/private defence
- Necessity
Insanity as a Defence
- Insanity rules derive from M'Naughten and confirmed in R v Sullivan
- Three elements: disease of the mind, defect of reason, and lack of responsibility
- Can be used as a defence or denial
- Cognitive tests determine if insanity is a defence or denial
Duress by Threats
- Concession to human frailty
- D is under serious threat or moral dilemma, with harm not limited to D personally
- Excuse to avoid liability, does not negate AR or MR
- Evidential burden on D to prove duress, then prosecution must disprove beyond reasonable doubt
- Not available for murder, attempted murder, and serious forms of treason
Elements to Consider for Duress
- Exclusions: nature of threat, response to threat
- Duress by threats: threats to someone
- Duress by circumstances: threat of immediate danger arising from circumstances
- Not available for murder, attempted murder, and serious forms of treason
Duress by Threats Case Law
- R v Hasan: threat must be to cause death or serious injury, objective test
- R v Howe: not available for murder, accomplices
- R v Wilson: followed R v Howe's precedent
- R v Gotts: not available for attempted murder
- R v Safi: duress can be founded on a mistake belief, reasonable belief required
- R v Branford: threat does not need to be directly conveyed
- R v Rodger and Rose: threat must be external
- R v Cole: lack of imminence and specified offence
- R v Ali: prior fault in forming relationship with X
Duress by Circumstances
- Extends duress to cover cases where there is no identifiable party threatening D
- Mirrors duress by threats in structure and requirements
- R v Willer: D drove slowly on the pavement to escape gang, allowed duress defence
Response to Threat
-
Must be substantial cause, not sole cause
-
R v Valderama-Vega: clarified the 'sole' motive test was wrong
-
Threat of serious injury had to be sufficient cause
-
R v Hudson and Taylor: threat was imminent and operative cause of D's offence
-
R v Graham: test asks if a reasonable sober person would have acted as D did
-
R v Brown: characteristics affecting D's ability to resist a threat may be relevant### Duress by Threats
-
Threat must be of death or serious injury to excuse a criminal act.
-
Threat can be imminent, but not necessarily immediate.
-
R v Hudson and Taylor: threats of harm can be considered imminent even if they cannot be carried out immediately.
-
A reasonable person's standard of resilience is used to evaluate the defendant's actions, but personal characteristics (age, gender, pregnancy, disability, or mental illness) can be considered.
-
The test is primarily objective, but with a subjective element.
Human Frailty and Reasonable Fortitude
- R v Graham: a defendant's vulnerable state (e.g., anxiety and medication) is not a consideration in determining their ability to resist a threat.
- The court assesses whether a reasonable sober person would have acted as the defendant did.
Duress by Circumstances
- R v Willer: duress by circumstances extends duress to cases where there is no identifiable party threatening the defendant.
- The circumstances must override the defendant's will in the same way as a threat.
- The same exclusions, nature of threat, and response to threat apply as in duress by threats.
- The main difference is that the threat/demand comes from the circumstances, not another party.
Circumstances Threat/Demand
- R v Quayle: the threat must still be of death or serious injury, and not come from the defendant themselves.
- The threat must be external, not internal (e.g., personal use of drugs for medical conditions).
- The court considers whether the circumstances would have caused a reasonable person to act as the defendant did.
Learn about the concept of defences in law, including why they exist and how they differ from denials of offence. Understand the role of defences in acknowledging contextual factors and human frailty. Test your knowledge with this quiz!
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