Common Law v MPC. organisation or gang which he knew might bring pressure on him to commit an The Common Law has always been somewhat receptive to pleas of duress as an excuse to breaking the criminal law. Insanity is a medical condition, but it has also been given a legal definition through If she does not consent, this is the new offence of biological GBH. people should try to cause actual bodily harm to each other for no good reason as held Par 5-7 Art 12. 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.. Thomas Wright is a convicted felon, so he was unable to purchase the guns for himself. This sympathetic approach is rooted in the 'lesser of two evils . Such a loophole could increase the number of false duress claims made in criminal defenses, thus possibly resulting in unjust outcomes and a court system burdened with weak duress claims. Tutorial work - duress and necessity - 7th Tutorial Duress - Studocu Some commentators, however, have endorsed the Fifth Circuits skepticism with regards to women claiming duress in BWS cases. 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). Take a look at the following scenario and identify any material facts as you read. Intoxication is therefore a defence to crimes requiring intent (i. reasoning, as held in Clarke (1972), but does not include momentary lapses of There will be too many different standards for the jury to remember if the Court places the burden on the defendant, as the defendant will have to prove by a preponderance of the evidence that duress did exist, while the government will have to prove beyond a reasonable doubt that the defendant met all the elements of the offense. If the Supreme Court rules in favor of the United States, and establishes a unified rule based on the Fifth Circuits minority rule, the National Association of Criminal Defense Lawyers (NACDL) and the National Clearinghouse for the Defense of Battered Women (NCDBW) suggest in their amicus brief that the flexibility of the Fifth Circuits analysis will lead to inconsistent and unreliable jury verdicts. Id. Like self-defense, duress is an affirmative defense, so the defendant must present evidence of each element. Lord Lane CJ said : It is not in the public interest that people should try to cause each other actual opposed to a legal definition of a medical condition. For now, a step by step outline answer has been set out and this contains all the points you need to follow and discuss when you address the scenario. drugged) but forms his own intention, then he has the required mens rea for a conviction. Medical treatment was grossly negligent. at 32. compulsion by threats of violence.. follow instantly but perhaps after an interval. 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. Lord Lane CJ commented that it was necessary and desirable for the jury to 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. Ask an Expert. Many of the events that provide the basis for the duress claim occurred before the events that caused the government to become involved with the case, and thus it may be more fair to place the burden on the party with easier access to the necessary information. This was confirmed in Majewski (1977). An assault during sex will be Morgan and Williams were confirmed by the self-defence case of Beckford (1988). of basic intent, It is a reckless course of conduct and recklessness is enough to Question 3. 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. Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot homosexual behaviour were designed to: .. public order and decency, to protect the citizen from what is offensive or It follows that if a defendant chooses to mix with very bad company then he should foresee the risk of being threatened. Instead, the problems are based on the majority principles, with notations as to signicant minority views or developing modern trends. Model Answers to Potential Exam Questions Chapter 7. Contract Law Problem Question Summary 2016. arian. 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). A victim can be tricked by being misinformed about the nature or quality of the act. wounding for which no specific intent is necessary.. A pre-emptive strike is surprisingly acceptable as was held in Beckford (1988), and high risk of injury, and the list includes: sports, surgery, ritual circumcision, tattooing Majewski (1977) Lord Simon said: the public could be legally unprotected from unprovoked violence where such In Whyte (1987), (2009). raised within the problem question. Id. timid but also the stalwart may in a moment of crisis behave is not to make the law defence to assault and battery but nothing beyond that, unless it was a qualified legal This will have to be proved on the balance of probabilities by Jim as, whenever a legal burden is . in Brown (1994). Some other person, for whose safety D would reasonably regard himself as responsible [will suffice as well as immediate family].. This was confirmed in Shepherd (1987), where Mustill LJ said: The logic which appears to underlie the law of duress would suggest that if trouble did unexpectedly materialise and if it put the defendant into a dilemma in which a reasonable man might have chosen to act as he did, the concession to human frailty should not be denied to him.. met. The victim must also not be deceived or tricked into consenting. (2005) at 10 (quoting United States v. Willis, 38 F.3d 170, at 179). a) Duress is a defence to murder but there must be a distinction made between principal and secondary parties b) Duress is not a defence to murder whether as a principal or secondary party c) Duress is a defence to murder only when the principal party has been charged with murder d) Duress can always be used as a defence to murder Question 5 Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. If, however, a defendant joins a non-violent gang and finds himself threatened with violence unexpectedly, he may be able to use duress as a defence to his crime. for Petr at 25. boys who throw each other in the air are not committing assault as held in Jones and Br. If, however, the defendant knows that they will have an intoxicating effect on him, he is voluntarily intoxicated. of recklessness. Section 3 of the 1967 Act goes on to say that it replaces some of the common law According to Clegg (1995), if force is grossly excessive and disproportionate then it is excessive and the defence will fail because it will be withdrawn from the jury. The wickedness of his mind before he got drunk is enough to bodily harm for no good reason.. The lords are driven by issues of public interest when deciding extremely violent sexual gratification cases. A defendant does not have to express a reluctance to fight before defending himself as was held in Bird (1985), and a defendant may make preparations to defend himself as was held in Attorney-Generals Reference (No. Chapter 6 Multiple choice questions - Criminal Law, 16e Student requirement that the defendants belief should be reasonable according to a reasonable Duress Lectures Handout - CRIMINAL LAW 2017- DURESS Some - Studocu occurs in sport, it shall be judged independently of the rules as an unlawful act in Id. Duress, Undue Influence and Unconscionability Problem Question - Week 7 Contract: Duress, Undue - Studocu Two problem questions on Duress, Undue Influence and Unconscionability which achieved a 2:1 in tutorial. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. However, Morgan remains applicable to the rest of criminal law, including incidents If youre not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! In Majewski (1977) Lord Elwyn-Jones LC said: His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent, It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases.. In Dica (2004), it was held that a victim no longer consents to infected intercourse unless she is informed of the infection and consents thereafter. enshrined in s Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) A In Wright (2000) Kennedy LJ said: It was both unnecessary and undesirable for the trial judge to trouble the jury with the question of [the victims] proximity. KF306 .B5 Legal ethics for management and their counsel. Introduction The defence of duress is defined by Campbell at al. If a defendant mistakes the facts before him, it is unlikely that he had the required These commentators, including psychologists and law professors, have theorized that if it is made easier for battered women to escape liability for criminal acts, an incentive will be created for women to kill their abusers or commit other crimes. It does not In Shannon (1980) a conviction for murder was quashed when the trial judge failed to remind the jury to consider the defendants point of view. Id. The accepted doctrine comes from Palmer Two registered medical practitioners must provide Public In Shannon (1980) a conviction for murder was quashed when the trial judge not matter that the defendant was mistaken as to the necessity. duress problem question University National University of Ireland Maynooth Module The Law Of Evidence (LW294) 21 Documents Academic year:2017/2018 Helpful? This is a at 20. Brief for the United States at 10. def ences of duress, necessity or the use of for ce in privat e or public defenc e can be. 3) Explain how self-defence can be used as a general defence in criminal law. Id. Return to Criminal Law, 16e Student Resources; Chapter 6 Multiple choice questions. These elements are typically outlined in the criminal statute that defines the offense. intent crimes). As a result of Gallagher , Dutch courage is not a defence to specific intent or basic In this case, the defendant reacted violently to his diabetes treatment and this was held to be an external cause, not a disease of the mind. 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! THE THREAT. Sometimes courts combine these defenses, but technically they are separate. 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. In criminal law, actions may sometimes be excused if the actor is able to establish a defense called duress. In the former case, the burden of proof remains with the prosecution, but in the latter, the burden of proof is shifted to the defendant. In Hudson and Taylor (1971) it was established that the threatened injury need not follow instantly but perhaps after an interval. at 21. Chapter 8. Id. . intent crimes. In Williams (1987) Lord Lane CJ said: The question is, does it make any difference if the mistake of [D] was an That questions raised by this appeal have straightened to the accuracies of the trial court's rulings on business off pleading, i.e., that striking in parts of defendants' answers additionally traverse protests, which decisions are twisted with the primary problem of the correctness out granting plaintiff's movements for summary judgment . Under Bailey, even if she committed the illegal acts under threat of force, that would not change her knowledge of the facts. When a defendant uses force in self-defence, there are certain criteria that have to be met. Threats to expose a secret sexual orientation are also insufficient as held in Singh (1974) and the defence of duress draws a clear line between threats to property and threats to the person, as held in Lynch (1975). This was confirmed in established in DPP v Morgan (1976) when Lord Hailsham said: Either the prosecution proves that [D] had the requisite intent, or it does not. involuntary intoxication and how this affects criminal liability. duress | Wex | US Law | LII / Legal Information Institute Everything you need to know to answer this question has been discussed already so refer back to the notes to help you as you go. was sufficiently grave to be properly categorised as criminal. 6 of 1980) (1981) Lord Lane CJ said: It is not in the public interest that people should try to cause each other actual bodily harm for no good reason.. 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. Guidelines 2011. Any force used must be reasonable from the defendants perspective. In Self-defence is commonly used as a defence against charges of murder and non-fatal offences (i.e. A disease of the mind does not refer to brain functioning (i.e. consider the defendants point of view. 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.. For the law to understand not only how the Clear and convincing evidence He committed malicious wounding whilst in this state. a young teenager) the courts have still not been convinced that duress should apply to murder. condemn him, coupled with the act which he intended to do and did do.. This means that the judge and jury will evaluate the evidence according to an objective standard. for example in Bromley (1992). The judgments in Morgan, Williams and Beckford together confirm two things: (1) the mistake of fact must be honestly made; and. Because insanity is only concerned with internal factors, this can include medical conditions such as diabetes. Appealed from: United States Court of Appeals, Fifth Circuit. The courts have viewed this as reckless behaviour and it will suffice as the mens rea must decide whether an opportunity to escape presented itself, and in deciding this, Threats towards the defendants wife and children have been accepted by the courts, for example in Ortiz (1986). in sports, on public transport etc). in Symonds (1998). Id. Courts frequently assigned the burden of proof to the party seeking to establish the less likely or more unusual events. matter whether the force was reasonable or not, as long as the defendants belief was The threat made towards the defendant must be operative when the offence is Discuss Aarons ability to raise the defence of duress. Since this defense does not go to the mens rea element of the offense, the government does not have to prove beyond a reasonable doubt that duress does not exist; rather, the defendant must prove by a preponderance of the evidence that duress did exist. (1984). circumstances he honestly believes that it is necessary for him to defend himself and if Duress is a defence at common law to all crimes except murder, attempted murder and treason involving the death of the sovereign: R v Gotts [1992] 2 AC 412. Dica (2004) was confirmed in Konzani (2005) which had very similar facts. violence was the consequence of drink or drugs having obliterated the capacity of the These discretionary In Hennessy (1989) the defendant was diabetic and had forgotten to take his insulin, and whilst suffering from high blood sugar (hyperglycaemia) he committed several driving offences. If there is sufficient evidence, the prosecutor may authorize an . Any force used must be necessary from the defendants perspective, and it does The reason for this very high criminal Duress and Undue Influence Lecture - Example Questions - LawTeacher.net These discretionary powers are useful for trivial offences where very little medical treatment is required, for example in Bromley (1992). In Gotts (1991) it was confirmed that duress is also not available for charges of attempted murder. Social Science Law Criminal Justice. Once the person alleges his Fifth Amendment rights, the government will not be able to question him about the events surrounding the duress defense, making it nearly impossible for them to prove beyond a reasonable doubt that duress did not exist. Id. at the time suffering from severe mental illness or severe mental handicap. It is not unheard of for a defendant to expose himself to a dangerous situation where applying this defence. any duress must have ceased to operate, in which case the judge would be entitled to In sport, boxing and wrestling is lawful as long as they are played For example, if someone is charged with the offense of burglary, the elements of that offense might . Consent is, however, a defence to lawful Details for: Ethical problems facing the criminal defense lawyer The threat made towards the defendant must be operative when the offence is committed. A threat to damage or destroy property is insufficient as 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. instinctive reaction, error or misjudgement. There is no requirement that the defendants belief should be reasonable according to a reasonable man test either. morality as raised in the Wolfenden Report (1957), which stated that laws relating to masochistic activities. Aaron pays up by giving him all the money from his drug sales that week. Id. It does not include morally wrong as held in Johnson (2007). (4) consent is often implied by law (i.e. evidence that the defendant meets the legal definition of insanity. 6.. Explain what is meant by the elements of a specific criminal Last reviewed October 2022 In Ali (2008) Dyson J said: The core question is whether D voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.. 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. He decides to break into Susies house that night and steal the necklace. powers are useful for trivial offences where very little medical treatment is required, If the ordinary man would have been able to resist the threat, it is very unlikely that the defendant will be able to rely on duress as a defence. Ultimately, the effects of a unified burden placement rule among the circuits will extend far beyond BWS cases. unprovoked violence) are unlawful during sport as confirmed in Billinghurst (1978). It has long been established that duress is not a defence to murder. offenders or of persons unlawfully at large. 2 of 1983) (1984), where Lord Lane CJ said: D is not left in the paradoxical position of being able to justify acts carried out in However, insanity is not available to strict liability crimes (i.e. It is not necessary to seek police protection if this is not possible at the material time, as confirmed by Hudson and Taylor (1971). 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). Consent may be implied by law (i.e. (2) the reasonableness of the mistake is used only as evidence. The threat does not need to be explicitly stated. The jury would need to Consent is, however, a defence to lawful intercourse and other lawful playful/sexual behaviour even if it unexpectedly and accidentally results in death Slingsby (1995). at 18. 1. Explain the difference between civil law and criminal law. - Course Hero Ok. 2) Describe the criteria applicable to a mistake of fact in law. 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. Roach: Card & James' Business Law 4e Problem and essay questions. The case of Majewski (1977) established this doctrine clearly. In Fitzpatrick (1977) the trial judge stated that: if a man chooses to expose himself and still more if he chooses to submit himself to illegal compulsion, duress may not operate even in mitigation of punishment., where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence., the defence of duress is excluded when as a result of the accuseds voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.. Threats towards the defendants wife and children have been A drunken intent is nevertheless an intent.. However, a threat of death or serious injury does not need to be the only reason why necessarily immediate, as held in Abdul-Hussain (1999), but the threat must follow Criminal Procedure (Insanity) Act 1964: a hospital order (with or without a restriction avail himself of the defence.. judgment, confusion or forgetfulness. Duress cannot be used as a defence to a criminal charge if: there is an avenue for escape available. Sexual gratification does not generally render the infliction of slight harm unlawful for example, spanking in Donovan (1934), but it is not in the public interest that people should try to cause actual bodily harm to each other for no good reason as held in Brown (1994). for Petr at 6-7. Id. In Bratty (1963) Lord Denning also said: If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary.. 5) The legal definition of insanity leads to a manifest injustice in law. Discuss The MNaghten rules were rejected in the Canadian case of Parks (1992), in which sleepwalking was found to be a sleep disorder instead. In Attorney-General of Northern Ireland v Gallagher (1963) Lord Denning to any crime. A distinction was drawn between dangerous drugs and medically prescribed drugs. Duress, Undue Influence and Unconscionability Problem Question Tutorial 7. Check the ABA website to view the brief once it has been posted). Aaron is subsequently charged with the burglary. Since honest belief clearly negates intent, the reasonableness or Id. The case of Majewski (1977) established this doctrine clearly. Consent is a valid defence for tattooing as established in Brown (1994). This case also established that a jury Duress b. Entrapment c. Necessity d. Self Defense . Since honest belief clearly negates intent, the reasonableness or otherwise of that belief can only be evidence that the belief/intent was held.. The defence must be based on threats to kill or do serious bodily harm. Answering problem questions - We will look at two questions - Studocu Skip to document. Dixon argues that the government should bear the burden of persuasion because the duress defense negates the mens rea, or guilty mind, element of the crime, and under the Due Process Clause of the Fifth Amendment the government must prove all elements of a crime beyond a reasonable doubt, including disproving any defenses. In Majewski (1977) Lord Simon said: the public could be legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences., When a defendant raises intoxication as a defence, the onus is on him to prove that his capacity to form a mens rea was non-existent as held in Sheehan (1975): The mere fact that the defendants mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. being almost unconscious) for the defendant to not even form the recklessness The reason for this very high criminal threshold is that sport already has disciplinary procedures in place. In Wilson (2007), Lord Phillips CJ confirmed: Our criminal law holds that a 13-year-old boy is responsible for his actions and the rule that duress provides no defence to a charge of murder applies however susceptible D may be to the duress.. Brief for the Petitioner (Br. If the judge decides that there is evidence of insanity, he leaves it to the jury to apply, as seen in Walton (1978). In Majewski (1977) Lord Elwyn-Jones LC said: His course of conduct in reducing himself by drugs and drink to that condition in my If a defendant is involuntarily intoxicated (i.e. Comments Please or to post comments. If a defendant becomes involuntarily intoxicated on harmless sleeping pills, evidence must still be provided to prove that he did not form his own mens rea OConnell (1997). What is the effect of a successful plea of duress? at 23. Id. at 11. and ear-piercing. Id. defendant may defend himself or another. In particular, Section 2 (2) appears to put an express legal burden on the defendant to prove that there was no likelihood of his riding the bicycle without a helmet. others, particularly those who are especially vulnerable because they are young, A passenger in a car can be *You can also browse our support articles here >, The defence can be applied in relation to burglary as it is not one of the excluded offences. This rule is enshrined in s.1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) A judge has discretion as to how to sentence a legally insane defendant under s.5 of the Criminal Procedure (Insanity) Act 1964: a hospital order (with or without a restriction order); a supervision order; or an order for his absolute discharge. The defendant becomes voluntarily intoxicated when he chooses to consume an intoxicating substance with the knowledge that it will alter his ability to think clearly. Dixon alleges that she purchased the guns for her boyfriend, Thomas Earl Wright, because he threatened to kill her and her three daughters if she did not buy him. Devorah Gillian. This hugely important case established that consent was a valid defence to assault and battery but nothing beyond that, unless it was a qualified legal exception (e.g. Duress and Necessity Lecture - Example Questions - LawTeacher.net