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Ocr A2 Law (criminal): Offical Thread!
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Dave_G03
yeah i am well sceptical about duress... but all of us cannot be wrong can we?
However I am up for Breaking into college and stealing (dishonestly appropriating) Both Criminal Law 1 and Criminal Law 2 exams, I see it as a neccessity (duress) so i wont be liable for any offence. It about time we put law into practice.
However I am up for Breaking into college and stealing (dishonestly appropriating) Both Criminal Law 1 and Criminal Law 2 exams, I see it as a neccessity (duress) so i wont be liable for any offence. It about time we put law into practice.
lol
Dave_G03
yeah i am well sceptical about duress... but all of us cannot be wrong can we?
However I am up for Breaking into college and stealing (dishonestly appropriating) Both Criminal Law 1 and Criminal Law 2 exams, I see it as a neccessity (duress) so i wont be liable for any offence. It about time we put law into practice.
However I am up for Breaking into college and stealing (dishonestly appropriating) Both Criminal Law 1 and Criminal Law 2 exams, I see it as a neccessity (duress) so i wont be liable for any offence. It about time we put law into practice.
hehe.. yeh then we can just say when we get arested.. yeh yeh yeh.. we know the powers of arrest mr policeman.. we're all law students!
... cus i only got cole Nicci1187
is the evaluation for duress of circumstances the same as duress by threats? if not does any 1 have circumstances evaluation notes they can email me with?
yeh same!! just post em up on here.. we all need what we can get at this stage.. must say we are a good team guys :P xxx
lulu7
do you know how gutted we will all be if it turns out not to be duress!!!!!!
do you know how gutted we will all be if it turns out not to be duress!!!!!! I really do think non fatals is JUST as likely. It hasn't come up as section A for ages and it is perhaps more practical to set than duress since people were saying how duress had changed within the past year...
Hmm... i see a lot of you saying duress will probably come up. I hope it does though, theres quite a bit to write about it.
Duress by Threats!
Common law defence. D accepts liability for actus reus and mens rea so it differs from other defences in this way but D provides an excuse as to why he commiteted the act
Duress is easy defence to raise so the courts have obviously had to put limits on it.
First, only a threat of death/serious injury will suffice. Nothing less (VALDERRAMA-VEGA) theres moral arguments about threats to pets and property but courts refuse to extend their position.
Next limit...tradtionally thought that threat could only be aimed at D but R V WRIGHT modified this so can now be aimed at D or anyone for whom D reasonably regards himself as responsible.
Many problems surrounding the imminency of the threat (R v ABDUL-HUSSIAN) used to be thought threat had to be IMMEDIATE but R v HUDSON + TAYLOR now says an imminent threat will suffice.
Duress was traditionally available as a defence to murder (R v LYNCH) but this was overruled by HL in R v HOWE, who also stated obiter that duress cannot be a defence to Attempted Murder - R v GOTTS.
Duress is no defence where D voluntarily exposes himself to risk of injury by joining a criminal gang - R v SHARP and R v Z
BUT may provide a defence where D voluntarily joined a gang but didn't know them to be violent-R v SHEPARD.
When duress is raised the courts use a 2 stage test developed in R v GRAHAM
1) was D impelled to act as he did through the fear of death/serios injury?
2) would a sober person of reasonable firmness sharing same characteristics as D act as he did?
BOWEN laid down what to be classed as relevant characteristics...age,sex,pregnancy,physical disability, mental disorder BUT NOT LOW IQ.
Common law defence. D accepts liability for actus reus and mens rea so it differs from other defences in this way but D provides an excuse as to why he commiteted the act
Duress is easy defence to raise so the courts have obviously had to put limits on it.
First, only a threat of death/serious injury will suffice. Nothing less (VALDERRAMA-VEGA) theres moral arguments about threats to pets and property but courts refuse to extend their position.
Next limit...tradtionally thought that threat could only be aimed at D but R V WRIGHT modified this so can now be aimed at D or anyone for whom D reasonably regards himself as responsible.
Many problems surrounding the imminency of the threat (R v ABDUL-HUSSIAN) used to be thought threat had to be IMMEDIATE but R v HUDSON + TAYLOR now says an imminent threat will suffice.
Duress was traditionally available as a defence to murder (R v LYNCH) but this was overruled by HL in R v HOWE, who also stated obiter that duress cannot be a defence to Attempted Murder - R v GOTTS.
Duress is no defence where D voluntarily exposes himself to risk of injury by joining a criminal gang - R v SHARP and R v Z
BUT may provide a defence where D voluntarily joined a gang but didn't know them to be violent-R v SHEPARD.
When duress is raised the courts use a 2 stage test developed in R v GRAHAM
1) was D impelled to act as he did through the fear of death/serios injury?
2) would a sober person of reasonable firmness sharing same characteristics as D act as he did?
BOWEN laid down what to be classed as relevant characteristics...age,sex,pregnancy,physical disability, mental disorder BUT NOT LOW IQ.
Nicci1187
Duress by Threats!
Common law defence. D accepts liability for actus reus and mens rea so it differs from other defences in this way but D provides an excuse as to why he commiteted the act
Duress is easy defence to raise so the courts have obviously had to put limits on it.
First, only a threat of death/serious injury will suffice. Nothing less (VALDERRAMA-VEGA) theres moral arguments about threats to pets and property but courts refuse to extend their position.
Next limit...tradtionally thought that threat could only be aimed at D but R V WRIGHT modified this so can now be aimed at D or anyone for whom D reasonably regards himself as responsible.
Many problems surrounding the imminency of the threat (R v ABDUL-HUSSIAN) used to be thought threat had to be IMMEDIATE but R v HUDSON + TAYLOR now says an imminent threat will suffice.
Duress was traditionally available as a defence to murder (R v LYNCH) but this was overruled by HL in R v HOWE, who also stated obiter that duress cannot be a defence to Attempted Murder - R v GOTTS.
Duress is no defence where D voluntarily exposes himself to risk of injury by joining a criminal gang - R v SHARP and R v Z
BUT may provide a defence where D voluntarily joined a gang but didn't know them to be violent-R v SHEPARD.
When duress is raised the courts use a 2 stage test developed in R v GRAHAM
1) was D impelled to act as he did through the fear of death/serios injury?
2) would a sober person of reasonable firmness sharing same characteristics as D act as he did?
BOWEN laid down what to be classed as relevant characteristics...age,sex,pregnancy,physical disability, mental disorder BUT NOT LOW IQ.
Common law defence. D accepts liability for actus reus and mens rea so it differs from other defences in this way but D provides an excuse as to why he commiteted the act
Duress is easy defence to raise so the courts have obviously had to put limits on it.
First, only a threat of death/serious injury will suffice. Nothing less (VALDERRAMA-VEGA) theres moral arguments about threats to pets and property but courts refuse to extend their position.
Next limit...tradtionally thought that threat could only be aimed at D but R V WRIGHT modified this so can now be aimed at D or anyone for whom D reasonably regards himself as responsible.
Many problems surrounding the imminency of the threat (R v ABDUL-HUSSIAN) used to be thought threat had to be IMMEDIATE but R v HUDSON + TAYLOR now says an imminent threat will suffice.
Duress was traditionally available as a defence to murder (R v LYNCH) but this was overruled by HL in R v HOWE, who also stated obiter that duress cannot be a defence to Attempted Murder - R v GOTTS.
Duress is no defence where D voluntarily exposes himself to risk of injury by joining a criminal gang - R v SHARP and R v Z
BUT may provide a defence where D voluntarily joined a gang but didn't know them to be violent-R v SHEPARD.
When duress is raised the courts use a 2 stage test developed in R v GRAHAM
1) was D impelled to act as he did through the fear of death/serios injury?
2) would a sober person of reasonable firmness sharing same characteristics as D act as he did?
BOWEN laid down what to be classed as relevant characteristics...age,sex,pregnancy,physical disability, mental disorder BUT NOT LOW IQ.
thanks my dear xx
Duress by threats - EVAULATION!
Is the Graham test fair? Some argue there should be no objective element at all because when compared with a 'reason person', the coward is denied a defence. Duress should be based solely on the situation D was in and his characteristics alone.
Why is duress not available for murder? Lord Hailsham proposed reasons for this;
1) If put in the situation of a choice between ones life and D's own, D should be prepared to sacrifice his own (BUT THE LAW SHOULD NOT REQUIRE SUCH HEROISM)
2)A just law cannot withdraw it's protection from an innocent victim (BUT D MIGHT BE AN INNOCENT VICTIM TO0)
2) One cannot take anothers life by claiming to be choosing the lesser of 2 evils (BUT YOU CAN...D WHO KILLS A TO PREVENT B BLOWING UP A SHOPPING PRECINCT FULL OF PEOPLE)
The Law Commission have rejected Lord Hailsham's arguments and propsed that duress be available to murder either as a full defence (self-defence) or a partial defence (provocation)
There is also calls to put defence of duress on a statutory footing as it will make it much simpler!
Is the Graham test fair? Some argue there should be no objective element at all because when compared with a 'reason person', the coward is denied a defence. Duress should be based solely on the situation D was in and his characteristics alone.
Why is duress not available for murder? Lord Hailsham proposed reasons for this;
1) If put in the situation of a choice between ones life and D's own, D should be prepared to sacrifice his own (BUT THE LAW SHOULD NOT REQUIRE SUCH HEROISM)
2)A just law cannot withdraw it's protection from an innocent victim (BUT D MIGHT BE AN INNOCENT VICTIM TO0)
2) One cannot take anothers life by claiming to be choosing the lesser of 2 evils (BUT YOU CAN...D WHO KILLS A TO PREVENT B BLOWING UP A SHOPPING PRECINCT FULL OF PEOPLE)
The Law Commission have rejected Lord Hailsham's arguments and propsed that duress be available to murder either as a full defence (self-defence) or a partial defence (provocation)
There is also calls to put defence of duress on a statutory footing as it will make it much simpler!
Duress of Threats
Duress of threats is availabe if the dft. is forced to comit a criminal act because another person is using force against him or another or threatning to do do.
AG v Whelan- definition
' threat of immediate death or serious personal viloence so great as to overbear the ordinary powers of himan resistance'
It is essential to examine each word form the above statement:
---------------------
THREATS
* the dft must be subjected to force or threat of it.
* This could be aimed at the accused himself, his family and others close to him.
Hurley (australian case) - accepted g/f as family.
Wright 2000 - case illustrates how 'family' has been extended to ppl the dft. is responsible for, in this case the dft's nonlive in b/f was accepted.
Commision favours the view that there should be no restrictions at all on the persons actually threated but it cannot be said with certainty that this is the current position.
----------------------
IMMEDIATE DEATH
* If normally there is plenty of time to obtain help and protection from other sources, the dft. will not be able to use this defence of duress.
Hudson and Taylor -
Abdul Hussain
--------------------------------------
OR SERIOUS PERSONAL VIOLENCE
The threat must be a really serious one.
Oritz- threat had been made to harm the dft's wife and child but earlier in the proceedings substantial inducements had also been given to the dft to persuade him to carry out the crime. he had received £90,000 in cash, a famly holiday and a flat in Chelsea. The jury refused to accept the defence of duress and convicted him of drug dealing.
--------------------------------------
SO GREAT TO OVERBEAR THE ORDINARY POWER OF HUMAN RESISTANCE
Graham- dft wa sa homosexual living with his wife and his homosexual lover (King). Graham claimed he was frightened of King because he had been violent towards both Graham and his wife. he also alleged that the valium he was taking increased his fear and made him agree to help in the murder of his wife.
His wife was stranglled by his lover.
The prosectuion claimed that Graham had assited in his action and with the disposal of the body afterwords. The defence of intoxication and duress was rejected.
At this point a 2 fold test had been used:
1) did dfft commit the crime because he honestly thought his life or family's life was in danger?
2) Would a sober person or reasonable nature, sharing dft's characteristics have responded in the same way?
-------------------------------------------------------------------------------------------------------------------------
Rejected Characteristic
Bowen 1986- C.O.A rejected the dft's appeal as he alleged that he had an IQ of 68 and was more vunerable to threats made by a group of ppl who threatned to petrol bomb his family. if he didnt onbtain electrical good from a store.
COA decided that low intellgience fell short form mental impairment.
Althogh certain charcteristic are relevant:
age
pregnany
serious phusical diability
mental illness
-----------------------------------------------------------------------------------------------------
LIMITATIONS
Courts have restricted the defence if Dft voluntairly joins a criminal group.
Fitzpatrick- IRA
Sharp
Ali
Shephard
-----------------------------------------------------------------------------------------------------------------------
DURESS AS A DEFENCE CAN NOT BE USED FOR MURDER.
Howe and Bannister-
Gotts-
REFORMS
* Parliament should clarify when this defence should or should not be available ( howe & Gotts)
* Some judges favour complete abolition and any circumstances excusing the dft. can be looked at when the dft was sentenced.
* minority feels defence of duress should be available for all cases even murder and attempted murder.
* However, shift the burden of proof to defence like insanity.
* Above does have some drawbacks:
1) if the defence succeeds someone who has killed intentionally will be allowed a full accuital. This might well cause extra distress to the victim's family.
2) An awareness of this might make the jury reject the defence and find the accused guilt of murder. he would then be sentenced to life imprisoment, despite the threats made to him.
3) Even where there is an obvious threat of harm to the dft. and more sympathy for their plight, may would argue against a full accquittal to murder. Vicious behaviour such as Howe and Gotts should not be allowed to go unpunished completely.
Duress of threats is availabe if the dft. is forced to comit a criminal act because another person is using force against him or another or threatning to do do.
AG v Whelan- definition
' threat of immediate death or serious personal viloence so great as to overbear the ordinary powers of himan resistance'
It is essential to examine each word form the above statement:
---------------------
THREATS
* the dft must be subjected to force or threat of it.
* This could be aimed at the accused himself, his family and others close to him.
Hurley (australian case) - accepted g/f as family.
Wright 2000 - case illustrates how 'family' has been extended to ppl the dft. is responsible for, in this case the dft's nonlive in b/f was accepted.
Commision favours the view that there should be no restrictions at all on the persons actually threated but it cannot be said with certainty that this is the current position.
----------------------
IMMEDIATE DEATH
* If normally there is plenty of time to obtain help and protection from other sources, the dft. will not be able to use this defence of duress.
Hudson and Taylor -
Abdul Hussain
--------------------------------------
OR SERIOUS PERSONAL VIOLENCE
The threat must be a really serious one.
Oritz- threat had been made to harm the dft's wife and child but earlier in the proceedings substantial inducements had also been given to the dft to persuade him to carry out the crime. he had received £90,000 in cash, a famly holiday and a flat in Chelsea. The jury refused to accept the defence of duress and convicted him of drug dealing.
--------------------------------------
SO GREAT TO OVERBEAR THE ORDINARY POWER OF HUMAN RESISTANCE
Graham- dft wa sa homosexual living with his wife and his homosexual lover (King). Graham claimed he was frightened of King because he had been violent towards both Graham and his wife. he also alleged that the valium he was taking increased his fear and made him agree to help in the murder of his wife.
His wife was stranglled by his lover.
The prosectuion claimed that Graham had assited in his action and with the disposal of the body afterwords. The defence of intoxication and duress was rejected.
At this point a 2 fold test had been used:
1) did dfft commit the crime because he honestly thought his life or family's life was in danger?
2) Would a sober person or reasonable nature, sharing dft's characteristics have responded in the same way?
-------------------------------------------------------------------------------------------------------------------------
Rejected Characteristic
Bowen 1986- C.O.A rejected the dft's appeal as he alleged that he had an IQ of 68 and was more vunerable to threats made by a group of ppl who threatned to petrol bomb his family. if he didnt onbtain electrical good from a store.
COA decided that low intellgience fell short form mental impairment.
Althogh certain charcteristic are relevant:
age
pregnany
serious phusical diability
mental illness
-----------------------------------------------------------------------------------------------------
LIMITATIONS
Courts have restricted the defence if Dft voluntairly joins a criminal group.
Fitzpatrick- IRA
Sharp
Ali
Shephard
-----------------------------------------------------------------------------------------------------------------------
DURESS AS A DEFENCE CAN NOT BE USED FOR MURDER.
Howe and Bannister-
Gotts-
REFORMS
* Parliament should clarify when this defence should or should not be available ( howe & Gotts)
* Some judges favour complete abolition and any circumstances excusing the dft. can be looked at when the dft was sentenced.
* minority feels defence of duress should be available for all cases even murder and attempted murder.
* However, shift the burden of proof to defence like insanity.
* Above does have some drawbacks:
1) if the defence succeeds someone who has killed intentionally will be allowed a full accuital. This might well cause extra distress to the victim's family.
2) An awareness of this might make the jury reject the defence and find the accused guilt of murder. he would then be sentenced to life imprisoment, despite the threats made to him.
3) Even where there is an obvious threat of harm to the dft. and more sympathy for their plight, may would argue against a full accquittal to murder. Vicious behaviour such as Howe and Gotts should not be allowed to go unpunished completely.
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