Sometimes a defense of duress can arise from a threat to someone close to the defendant, but usually it involves the defendant directly. (4) consent is often implied by law (i.e. To use the defence of duress by threats, the defendant is admitting that he committed the actus reus of an offence and that he had the required mens rea when carrying out the offence. The defendants were sentenced to hang but this was commuted to six months in prison. Defence problem questions are not like other problem questions on offences where you establish the actus reus and mens rea and then apply them to see if they are fulfilled, so it may take a few attempts at them to adjust your style before you feel really confident at tackling them! reasonably regard himself as responsible [wi, Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. avail himself of the defence.. confirmed by Kemp (1957), in which Devlin J said: The law is not concerned with the brain but with the mind, in the sense that mind The prosecutor may ask law enforcement to do further investigation. reasonable man might have chosen to act as he did, the concession to human frailty A failure to raise the alarm and wreck the whole enterprise may see the defence The condition of the brain is irrelevant and so is the question whether the condition is curable or incurable, transitory or permanent.. He committed malicious wounding whilst in this state. The wickedness of his mind before he got drunk is enough to Defence of Duress in Criminal Law - Studocu Id. What is clear, however, is that the United States has a compelling case in its citation of the practical consequences of such a rule; the governments fear that duress defenses could be abused by defendants to escape liability is altogether unpalatable and may weigh heavily in the Courts deliberations on this case. this statement with reference to legal authorities. Duress is generally not a defense to murder, but a few states may reduce the crime to manslaughter. It is, however, available on a charge . Id. offence and was an active member when he was put under such pressure, he cannot in Symonds (1998). Lord Lane CJ commented that it was necessary and desirable for the jury to This threat must include immediate serious injury or death to himself or others in Hudson and Taylor (1971). Community life allows for implied consent (i.e. The method or source of intoxication does not matter the courts do not distinguish between alcohol and illegal drugs. The following problem question is designed to test your knowledge of the defence of duress and give you an opportunity to try and apply the elements of the defence in a practical context in response to an offence committed. Criminal organizations, gangs or drug rings all carry Criminal Law - Problem Question Notes Set - Stuvia It is not necessary to seek police protection if this is not possible at the material time, as confirmed by Hudson and Taylor (1971). Medical treatment was grossly negligent. The judgments in Morgan, Williams and Beckford together confirm two things: (1) the mistake of fact must be honestly made; and. R v Jordan [1956]: D stabbed V. V was almost healed when he was admitted to hospital and was given antibiotics. This case also established that a jury must decide whether an opportunity to escape presented itself, and in deciding this, the jury should have regard to: the defendants age; the defendants circumstances; and any risks to the defendant. The legal definition of See Br. Common Law v MPC. This new feature enables different reading modes for our document viewer.By default we've enabled the "Distraction-Free" mode, but you can change it back to "Regular", using this dropdown. Public Clause 35(1): A mental disorder verdict shall be returned if the defendant is proved to Return to Criminal Law, 16e Student Resources; Chapter 6 Multiple choice questions. It is a supportive of the law to allow unexpected threats of violence to fall in the defendants favour. It is commendable that family members can count for consideration by the jury when applying this defence. This rule is a common law rule that stated that a person could not be prosecuted for homicide unless the victim died within a year and a day of the act that was responsible for the fatal injury. Br. This means that it is active at the time of the actus reus of the offence. Tutorial 7. According to Burns (1974), taking morphine to calm a health complaint will be deemed to be involuntary intoxication as long as the defendant did not appreciate the effect it would have. The government also distinguishes the insanity defense involved in Davis from the duress defense asserted by Dixon. Model Answers - Problem questions in Criminal Law - Studocu In Kingston (1995) the defendant committed indecent assault whilst intoxicated. The Brown case therefore allows both assault and battery to be A failure to raise the alarm and wreck the whole enterprise may see the defence of duress withdrawn as held in Gill (1963). Ask an Expert. for Petr at 13. a young teenager) the courts have still not been convinced that duress should apply to murder. Quiz & Worksheet - Duress in Criminal Law | Study.com For example, if someone is charged with the offense of burglary, the elements of that offense might . Although most normal criminal cases will likely be unaffected, cases in which the evidence could point either way may well end up with an opposite result as compared to before this case. at 31. When he goes to Jay with no money Jay is livid and tells Aaron that he must pay the money back by the next morning, even if he has to steal it, or he will be killed. also said: If the drunken man is so drunk that he does not know what he is doing, he has a A victim can be tricked by being misinformed about the nature or quality of the act. If she does not consent, this is the new offence of biological GBH. Hudson and Taylor (1971). others (1987). Good luck! If a defendant mistakes the facts before him, it is unlikely that he had the required mens rea. have committed an offence but it is proved on the balance of probabilities that he was Consent is allowed as a defence to surgery as held in Corbett v Corbett (1971). The judgment in Morgan states two things: (1) the mistake of fact must be honestly made; and of reason, from disease of the mind, as not to know the nature and quality of the act 5. Section 3 of the 1967 Act goes on to say that it replaces some of the common law rules and the courts have since used both statute and common law together, as was established in Cousins (1982). This is in order to protect the vulnerable members of society and to prevent perpetrators from simply using consent as a defence to all harms. persons body (i. burning initials onto them) is to be considered the same as Public policy can also determine whether an offence is specific or basic intent, as held in Heard (2007). This was confirmed in A defendant also cannot present a duress defense if they were responsible for getting into the situation that resulted in the threat of death or serious injury. If the This is because intention is present and recklessness is also present. If there is sufficient evidence, the prosecutor may authorize an . Where an unlawful act A defendant can only use reasonable force when defending himself. ? or trifling injury as held in Boyea (1992). foresaw or ought reasonably to have foreseen the risk of being subjected to any Duress cannot be used as a defence to a criminal charge if: Id. (1977) the trial judge stated that: if a man chooses to expose himself and still more if he chooses to submit himself to at 32. If he does not, his defence of duress may at 17. reasoning, as held in Clarke (1972), but does not include momentary lapses of Paulo Santos. a. Preponderance of the evidence b. The prosecution may not need to disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it. If a defendant intentionally becomes intoxicated in order to commit a crime, this is In BWS cases, the woman is usually under the influence of an abusive boyfriend or husband who, while posing no literal immediate threat to the woman, can fulfill the immediacy requirement of duress through a pattern of putting the womans life constantly at risk through regular beatings or abuse. any duress must have ceased to operate, in which case the judge would be entitled to at 22-23. While duress is not a justification for committing a crime, it can serve as an excuse when a defendant committed a crime because they were facing the threat or use of physical force. The criminal justice system is expensive. A ruling in favor of the United States would thus result in an inflexible and strict rule which might in practice restrict defendants constitutional right to be proven guilty beyond a reasonable doubt. Appealed from: United States Court of Appeals, Fifth Circuit. thought processes) as confirmed by Kemp (1957), in which Devlin J said: The law is not concerned with the brain but with the mind, in the sense that mind is ordinarily used, the mental faculties of reason, memory and understanding. Being an especially timid person or being fearful because of past interactions with the person making the threat will not be enough to support the defense. Id. It is not unheard of for a defendant to expose himself to a dangerous situation where he may find himself threatened. Consent may be implied by law (i.e. The main difference is that duress means that the defendant committed a crime because someone directly forced them to do it. mens rea. Oxford University Press | Online Resource Centre | Chapter 3 Involuntary Manslaughter writing framework, Advice note guidance about writing an advice note, Business & Politics in Britain (Not Running 2013/14) (POLI30671), Year 3 Junior Medicine & Surgery (MEDI30021), Unit 8: The Roles and Responsibilities of the Registered Nurse, advanced financial management P4 (AFM P4), Pre-Degree English Language (IA300-4-SL-CO), P7 - Advanced Audit and Assurance (P7-AAA), Introduction to English Language (EN1023). Consent is, however, a defence to lawful duress | Wex | US Law | LII / Legal Information Institute He decides to break into Susies house that night and steal the necklace. Some commentators, however, have endorsed the Fifth Circuits skepticism with regards to women claiming duress in BWS cases. involuntary intoxication and how this affects criminal liability. The reason for this very high criminal threshold is that sport already has disciplinary procedures in place. The defendant will typically argue that his victim consented to the harm that was inflicted. Id. The legal definition of insanity comes from a very old case MNaghten (1843), which reads as follows: To establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.. otherwise of that belief can only be evidence that the belief/intent was held.. for example, spanking in Donovan (1934), but it is not in the public interest that If youre not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! The courts have viewed this as reckless behaviour and it will suffice as the mens rea The rules of intoxication are as follows: (1) it is a full defence if the defendant could not form the required intention ; We will look at two questions. for Petr at 7-8. man test either. The law also limits consent in certain situations. def ences of duress, necessity or the use of for ce in privat e or public defenc e can be. The judgment held of Morgan was applied to indecent assault in Kimber (1983), but Morgans application to rape has been overruled by the Sexual Offences Act 2003) However, Morgan remains applicable to the rest of criminal law, including incidents of mistaken self-defence. In Attorney-Generals Reference (No. Chapter 6 Multiple choice questions - Criminal Law, 16e Student There is no requirement that the defendants belief should be reasonable according to a reasonable man test either. fail. to have foreseen the risk of being subjected to any compulsion by threats of violence.. Branding a The mistake of fact must, of course, be honestly made, and this was established in DPP v Morgan (1976) when Lord Hailsham said: Either the prosecution proves that [D] had the requisite intent, or it does not. Id. committed. element as held in Stubbs (1989). If a defendant voluntarily chooses to join a dangerous necessarily immediate, as held in Abdul-Hussain (1999), but the threat must follow Chapter 9. Take a look at the following scenario and identify any material facts as you read. The method or source of intoxication does One on duress (from tutorial three) and another on non-fatal offences against the person. The defence must be based on threats to kill or do serious bodily harm. Lawton LJ stated in Quick: The fundamental concept is of a malfunctioning of the mind caused by disease. In Pommell (1995) Kennedy LJ held: in some cases a delay, especially if unexplained, may be such as to make it clear that any duress must have ceased to operate, in which case the judge would be entitled to conclude that the defence was not open.. In fact, voluntary intoxication will have to be absolutely extreme (to the point of being almost unconscious) for the defendant to not even form the recklessness element as held in Stubbs (1989). The defence is not available to a person charged with murder as a principal or as an aider, abettor, counsellor or procurer: R v Howe [1987] A.C. 417. Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot Off the ball incidents (e. unprovoked violence) are These elements are typically outlined in the criminal statute that defines the offense. wounding for which no specific intent is necessary.. requirement that the defendants belief should be reasonable according to a reasonable Multiple Choice Questions and Answers Fractured NOH - clinical pattern sheet Company - Piercing the corporate veil Chapter I - Summary Project Management: the Managerial Process Assignment 7 Human Reproduction, Growth ad Development revision Guide Compare and contrast the three faces of Power Trusts - Formalities for Petr at 14. unlawful during sport as confirmed in Billinghurst (1978). In addition to the historical development of the duress defense, the government argues that developments under modern federal law suggest that the burden should remain with the defendant. In cases brought under civil law, the plaintiff . to apply, as seen in Walton (1978). Was there - StuDocu 7th tutorial duress and necessity duress steps: was there an immediate threat(hasan case, although note hudson taylor case) of death or serious violence. The threat made towards the defendant must be operative when the offence is committed. In Attorney-Generals Reference (No. presents itself, the defendant must do so. Some general guidance for tackling a criminal law problem question. Because most of the coercive conduct involved in a duress defense constitutes a criminal defense, the person alleged to have made the threat will assert his Fifth Amendment right against self-incrimination. at 30. A defendant may thus protect himself in the event that he anticipates violence. If an opportunity to escape presents itself, the defendant must do so. I need help filling out a Motion of appeal to a duress plea Id. A distinction was drawn between dangerous drugs and medically prescribed drugs. In Tabassum (2000) the defendants convictions for indecent assault were upheld because the women were consenting for medical purposes, meaning that they had been deceived as to the quality of the act. Section 3 of the 1967 Act goes on to say that it replaces some of the common law The distinction is as follows: if the defendant doesnt know they will make him intoxicated, it is deemed to be involuntary intoxication. in sports, on public transport etc). Controversially in Burgess (1991), the defendant attacked his friend during a sleepwalking episode. If the honest mistake is caused by voluntary intoxication, the defence of self-defence will fail, as held in OGrady (1987). Most of the Lords in Brown were persuaded by issues of public The jury would need to consider whether the conduct was obviously late and/or violent and not simply an instinctive reaction, error or misjudgement. There is no at 26-27. Studies suggest that costs associated with criminalizing homelessness outweigh the costs of housing people. In the view of the NACDL and NCDBW, the flexibility of these different burdens of proof are vulnerable to abuse by the prosecution if the prosecutors choose to charge defendants with crimes which courts decide only allow an excuse duress defense. Such violence is injurious to participants and unpredictably dangerous.. Guidelines 2011. Br. threatened as held in Conway (1988) and a spouse may threaten to harm herself as in Brown (1994). When a defendant uses force in self-defence, there are certain criteria that have to be met. defendant may defend himself or another. Dixon was ultimately convicted under this rule in the trial court. In sport, boxing and wrestling is lawful as long as they are played within the rules, but prize fights are conducted outside the rules and are unlawful as was held in Coney (1882). Study Questions. Ask an Expert. For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just.. 2) Describe the criteria applicable to a mistake of fact in law. A passenger in a car can be THE THREAT. Duress problem question plan - Malcolm lost his successful - Studocu To use the defence of duress by threats, the defendant is admitting that he committed the actus reus of an offence and that he had the required mens rea when carrying out the offence. is ordinarily used, the mental faculties of reason, memory and understanding. friend is consenting as held in Aitken and others (1992). The government contends that, in light of the common law history of the duress developments and modern developments in federal law, the defendant who raises an affirmative defense of duress should bear the burden of proving by a preponderance of the evidence that duress did exist. This Id. Aaron knows that his brothers girlfriend Susie is very well off and has seen her wear a diamond necklace. sport). What is the effect of a successful plea of duress? Any evidence of self-defence must still be left to a jury Id. Par 5-7 Art 12. (2) the reasonableness of the mistake is used irrelevant. KF306 .A84 1995 ACTEC commentaries on the model rules of professional conduct. Valium tablets which are designed to calm a patient will also be deemed to be involuntary intoxication if they cause completely unexpected effects as seen in Hardie (1985). Instead, the problems are based on the majority principles, with notations as to signicant minority views or developing modern trends. illegal compulsion, duress may not operate even in mitigation of punishment.. prosecuted despite consent if the harm is intended to cause more than transient did unexpectedly materialise and if it put the defendant into a dilemma in which a Skip to document. Id. Under the Fifth Circuits rule, NACDL and NCDBW claim, courts may subject duress defenses to two differing burdens of proof depending on whether the court characterizes the duress defense as one which negates an element of the crime, or as one which merely excuses the crime. A malfunctioning of the mind caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.. Most of the Lords in Brown were persuaded by issues of public morality as raised in the Wolfenden Report (1957), which stated that laws relating to homosexual behaviour were designed to: preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of dependence.. established in Cousins (1982). The High Court of Australia took an alternative view in Stapleton (1952), believing that the morality of the act was more important than its legality. Necessity involves a choice between two bad alternatives that could not be avoided, which arose from the circumstances rather than the actions of a specific person. Oxbridge notes | Problem Questions Notes This threat must include immediate serious injury or death to himself or others in Dealing with the problem question of Defence in Criminal Law criminal law duress and necessity (defence) answer structure for pq take look at the following. 6) Explain the ways in which the law distinguishes between voluntary and The primary focus of the governments argument is Dixons reliance on Davis v. United States. The burden of proving lack of consent rests with the prosecution as was established in Donovan (1934): (3) the consent must be fully informed (i.e. Tutorial 13 (substantive defences) - Criminal Law Tutorial - Studocu Where a criminal defendant raises a duress defense, whether the burden of persuasion should be on the government to prove beyond a reasonable doubt that the defendant was not under duress, or upon the defendant to prove duress by a preponderance of the evidence? The courts have viewed this as reckless behaviour and it will suffice as the mens rea of recklessness. necessary intention was there. all of the above. tattooing even though it is technically an actual bodily harm as seen in Wilson (1997). This case also established that a jury Answer one: This is clearly an issue of duress, specifically, duress by threat of violence. Finally, requiring the government to prove that duress existed places presents high social costs, as the reasonable doubt standard would overprotect defendants while jeopardizing important interests in punishing those who violate the law. Id. Id. Crime Victim Rights - Michigan Broadmoor). Self-defence is commonly used as a defence against charges of murder and non-fatal offences (i.e. You should also state how you are going to structure your answer - straightforward in this case as there is only a single criminal event. (2005) at 10 (quoting United States v. Willis, 38 F.3d 170, at 179). consented to in sexual situations as well as in general everyday life. This is a Sometimes courts combine these defenses, but technically they are separate. In Bailey (1983), the defendant took his insulin but forgot to eat, making him hypoglycaemic. Where an unlawful act occurs in sport, it shall be judged independently of the rules as an unlawful act in itself as held in Bradshaw (1878) and Moore (1898). Here liability is clear, and our focus is criminal defences. A threat may be imminent but not necessarily immediate, as held in Abdul-Hussain (1999), but the threat must follow immediately or almost immediately as in Hasan (2005). Aaron lives in an estate just outside Birmingham city centre. was formed. being almost unconscious) for the defendant to not even form the recklessness nt noel10 months ago very very good Students also viewed Estate ownership and management in nineteenth and early twentieth Since honest belief clearly negates intent, the reasonableness or otherwise of that belief can only be evidence that the belief/intent was held.. 3) Explain how self-defence can be used as a general defence in criminal law. The new phrase severe mental illness places an emphasis on medical diagnosis as opposed to a legal definition of a medical condition. If a defence is established it will result in an acquittal. In Ali (2008) Dyson J said: The core question is whether D voluntarily put himself in the position in which he The defense can arise when there's a threat or actual use of physical force that drives the defendantand would've driven a reasonable personto commit a crime. A reasonable fear of imminent death or serious bodily harm, Through the words or actions of another person, With no reasonable opportunity to escape the threat, Aggravating and Mitigating Factors in Criminal Sentencing, Receiving Immunity for Testimony in a Criminal Case, Mistake of Fact or Law Defense in Criminal Cases, Expungement and Sealing of Criminal Records, The Mental State Requirement in Criminal Cases, Domestic Violence Restraining Orders Laws and Forms: 50-State Survey. time of the committing of the act, the party accused was labouring under such a defect Aaron is subsequently charged with the burglary. Clear and convincing evidence In criminal law, consent is a defence to many crimes. crimes with no mens rea) and this was established by DPP v H (1997). the defendant committed the offence, as held in Valderrama-Vega (1985) and Baker As Dixon conceded, Congress has rejected Davis by statute, placing the burden on defendants to prove insanity by clear and convincing evidence. offenders or of persons unlawfully at large. as "when an accused claims that a person or set of circumstances forced them to act in an unlawful way that would not have been their free choice". he may find himself threatened. policy can also determine whether an offence is specific or basic intent, as held in Id. Case Law on Duress by Threats - LawTeacher.net There is a presumption of sanity in law, and as a result of this presumption, it is for the defence to prove insanity, but only on a balance of probabilities. consider the defendants point of view. Skip to document. It has long been established that duress is not a defence to murder. Lord Templeman said: the violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims.