(iii) the evil inflicted must not be disproportionate to the evil avoided 4. -consequently D no longer has to join an organisation/gang but should be involved in criminal enterprise ", He sought to apply it specifically to evidence obtained by entrapment, by an agent provocateur or by a trick and argued that the section altered the law as laid down in. In choosing to kill an innocent person rather than themselves defendants could not be said to be choosing the lesser of two evils. But even where a person had the opportunity to tell the police of the coercion they might be so afraid of the consequences that they dont go to the police. However, that is not to say that entrapment, agent provocateur, or the use of a trick are irrelevant to the application of. The reasonable person is of average fortitude, ie strength and firmness of mind: In two cases, R v Hegarty [1994] Crim LR 353 and R v Horne [1994] Crim LR 584, the defendant sought to introduce psychiatric evidence that he was especially vulnerable to threats. overruled R v Lynch (1975), which previously allowed secondary offenders the defence of prosecution. R v Sullivan [1984] AC 156 Example case summary. The Court is not concerned with how it was obtained. 2. must have knowledge of its nature He * If the appeal (and consequently the defence) were allowed the House would also have to say that R v Dudley and Stephens was bad law (which it was not prepared to do). -if no operation was performed both twins would die within 3-6 months 'I was interviewed by an Immigration Officer who asked me about my first visit to the country. * Characteristics which might be relevant in considering provocation would not necessarily be relevant in cases of duress, for example, homosexuality. A person cannot be excused from the one type of pressure on his will (ie, duress) rather than the other (ie, necessity). His reasoning is based on the fact that $2.5\$ 2.5$2.5 million has already been spent over the past 151515 years on this project. Howe took part in two killings, one where he was a secondary participant and one where he was the principal offender. Browse over 1 million classes created by top students, professors, publishers, and experts. These events were repeated on a second occasion but this time it was Howe and Bannister who themselves strangled the victim to death. This is not a UNHCR publication. Seminar answers and questions evidence law burden of proof, SEMINAR 2: BURDEN AND STANDARD OF PROOF (MC). CoA confirmed duress can be used for Class A drug offences and other threats can At his trial he sought to adduce evidence that he had acted under duress. "-The English authorities are conflicting on whether the defence Had Parliament intended to alter the substantive law, it would have done so in clear terms. -defence = threatened with having head blown off if he did not cooperate Using marginal cost-benefit analysis, make your decision regarding whether you should authorize the $10,000\$ 10,000$10,000 expenditure to continue the project. undefined: unpaid. The harshness of the Howe principle is seen in R V Wilson 2007 where the defendant aged 13 who participated in the killing with his father was refused the defence of duress by the Court of Appeal. X told him to get it from a bank or building society. The court so held in: R v Shepherd (1987) 86 Cr App R 47. Do the same principles of duress of circumstance apply if the threat is from a person? -on facts, necessity does not arise In-house law team, The general nature of the defence of duress is that the defendant was forced by someone else to break the law under an immediate threat of serious harm befalling himself or someone else, ie he would not have committed the offence but for the threat. Mr Worsley's starting point was the decision of the House of Lords in Sang (1980) AC 402. The defendant was convicted with possessing an unlicensed firearm during a night time raid. If it was obtained illegally, there would be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. The defendant was 16 years old at the time and was threatened with violence by his father unless he killed his mother. From the outset, he knew X to be a very violent man and he had been threatened by him that he would be shot if he did not repay the debt. What is the objective part of the Graham test? But the Court of Appeal said that the threat was hanging over them at the time the offence was committed i.e. In R V Ortiz 1986 the defendant was forced to participate in smuggling cocaine as he was told his family would disappear otherwise. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur.". The manager admits that the satellite concept has been surpassed by recent technological advances in telephony, but he feels that AIMCO should continue the project. Lord Jauncy stated: The reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance. What can you conclude about the effects of the inventory The defendant imported cocaine and said he received threats of death, exposure of his homosexuality to his wife and he had high debts. XYZ Ltd. -he was charged and convicted of theft In Harwood (1989) Crim LR 285, the Court stated, albeit obiter, that section 78 has not abrogated the rule that neither entrapment nor agent provocateur afford a defence to a criminal charge. - Duress is being forced to commit a crime She worked the following hours last week: Monday 9 hours, Tuesday 7 hours, Wednesday 8128\frac{1}{2}821 hours, Thursday 6 hours, Friday 9 hours, Saturday 3 hours. In each, the appellant was convicted of soliciting to murder; Smurthwaite to murder his wife, Gill to murder her husband. D must take advantage of any escape opportunities. It was held that the defence of duress by threats was only made out where the threatener nominated the crime to be committed by the defendant. 1957 ], duress [ R v Gill 1963 ] and non-insane automatism [ Bratty v AG for NI 1963 ]. The two cases were heard together since they had a number of features in common. This places an evidential (but not legal) burden on him to adduce some tangible evidence such that the judge will allow the matter to be considered by the jury: R v Gill [1963] 1 WLR 841. she is suffering from schizophrenia and is unable to give a coherent account of what Zelda is charged with arson. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. 1. D, believing V to be hostile to him, braked so that V fell off and ran over him, causing GBH. If D knowingly joins a violent criminal gang and foresaw or should have foreseen a responsible for. The prosecution could deal with difficult cases by deciding not to prosecute but it is not satisfactory to rely on the prosecution discretion to prosecute or not, this leads to unfairness and uncertainty. In dismissing the appeal, the Court of Appeal held that a man must not voluntarily put himself in a position where he is likely to be subjected to such compulsion. Section 16(4) of the Code sets out a presumption of sanity. In R v Hudson and Taylor [1971] 2 QB 202, two teenage girls committed perjury during the trial of X. 5th Jul 2019 Case Summary Reference this In-house law team . The boilers were shipped to the United Kingdom on a ferry and disembarked at Felixstowe. she acted with all reasonable care. -occupants had been kept alive due to resourcefuless or D, the captain, but after 7 days without food and 5 days without water , D and S killed the cabin boy who was already delirious and near to death -no general defence of necessity The defence was available where a threat was made to the defendants boyfriend. -D is threatened (with death or serious injury) by another to commit a specific criminal offence - Cole (1994), -D is threatened by circumstances - Pommell (1995), -'imminent peril of death or serious injuryis an essential element' - Abdul-Hussain (1999), -HOL ruled that threat must be immediate or almost immediate, Opportunities to escape/police protection, -D was threatened with violence unless he stole a lorry, -two teenage girls lied on oath about a violent attack as they had been threatened with death if they gave evidence serious injury if she refused, Duress by Threat is available for all crimes except Murder and Attempted Murder, - R v Howe (1987), D was part of a gang that killed two people. -D committed an armed burglary and at trial pleaded duress - he was convicted -all three judges agreed that the doctors would have a defence of necessity and the operation would be lawful. Amounts for pretax accounting income, depreciation, and taxable income in 2021, 2022, 2023, and 2024 are as follows: 2021202220232024Pretaxaccountingincome$330$350$365$400Depreciationontheincomestatement20202020Depreciationonthetaxreturn(80)(0)(0)(0)(0)$420Taxableincome$270$370$385\begin{array}{lcccr} defendant seeks to rely on one of these defences, then, unless sufficient evidence to put the The driver of a prostitute was threatened by the prostitutes violent boyfriend to carry out a burglary and he was not allowed the defence. The House of Lords held that the defence of duress could not be raised where the charge was one of attempted murder. Court of Appeal upheld conviction and introduced duress. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. Duress was allowed. Duress was denied. The defendant joined a group of thieves. -trial judge had withdrawn defence of duress from jury PRINCIPLE How must the defendant take an opportunity to escape or seek police protection? way? If he was unaware of any propensity to violence, the defence may be available. \end{array} (i) the act is needed to avoid inevitable and irreparable evil; If it was obtained illegally, there would be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. - ownership of property not a material averment. R v Valderrama-Vega (1985) D was caught smuggling cocaine into UK, claimed The trial judge excluded her boyfriend as not being sufficiently proximate saying that the defence was only available if directed towards a member of immediate family. If a defence is established it will result in an acquittal. death or serious injury (subjective). He was convicted despite his defence of duress. claim against a third party, Richard, with due care and attention. 30. The two cases were heard together since they had a number of features in common. The appeal court said this was wrong and allowed her appeal. Mr Worsley emphasised the phrase "including the circumstances in which the evidence was obtained." Whilst at some stages of his argument he accepted that there is still no substantive defence of entrapment or agent provocateur, at others he contended that, in effect, "The rule that entrapment was no defence could not be evaded by the procedural device of preventing the prosecution adducing evidence of the commission of the offence.". PRINCIPLE Is there any logic in affording the defence to one who intends to kill but fails and denying it to one who mistakenly kills intending only to injure?, It is of course true that withholding the defence in any circumstances will create some anomalies but I would agree with Lord Griffiths (Reg. The other principles were as follows: * The mere fact that the accused was more pliable, vulnerable, timid or susceptible to threats than a normal person did not make it legitimate to invest the reasonable/ordinary person with such characteristics for the purpose of considering the objective test. Last modified: 28th Oct 2021 The defendant, a psychomotor epilepsy sufferer, had an epileptic seizure during which he kicked the victim in the head violently. duress by threats. In Gill and Ranuana (1989) Crim LR 358, some reservations were expressed as to the correctness of those dicta in Harwood. v Howe) that nothing should be done to undermine in any way the highest duty of the law to protect the freedom and lives of those who live under it. Courts didnt consider his low IQ and held that low IQ is not a relevant A It was said that duress of circumstance is not limited to driving offences. The defendant claims that although he committed the actus reus of the crime with the required mens rea. Viewed in that way, the phrase emphasised by Mr Worsley clearly permits the Court to have regard to "the circumstances in which the evidence was obtained" and to exclude it, but only if it "would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it". G did so for about a minute and the wife was killed. The defence is only available if the defendant commits an offence of a type that was nominated by the person making the threat. Compute the cost of ending inventory and cost of goods sold using the FIFO inventory costing method. "The rule that entrapment was no defence could not be evaded by the procedural device of preventing the prosecution adducing evidence of the commission of the offence." He The threat must be of death or serious injury as in R V Hudson and Taylor 1971 where the defendants were told they would be cut up later if they didnt lie. available for class A drug offences and a combination of threats should be * To do so would positively encourage terrorist acts, in that the actual perpetrators could escape liability on the ground of duress, and further. &&\textbf{Purchase Price}&\textbf{Sale Price}\\ In allowing the appeal, the Court of Appeal held that the question should have been left to the jury to decide whether he could be said to have taken the risk of violence from a member of the gang, simply by joining its activities. will be seen, the Criminal Code specifically excludes it in regard to several offences. Similarly, Viscount Dilhorne, at page 441 G, said: "Evidence may be obtained unfairly, though not illegally, but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it.". In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? Crandall Distributors uses a perpetual inventory system and has the following data available for In such a case a man cannot claim that he is choosing the lesser of two evils. The court upheld his robbery conviction because the people threatening him didnt say rob a building society or else. threatened as they owed money to someone. A purely evidential provision in a statute, which does not even mention entrapment or agent provocateur, cannot, in our view, have altered a substantive rule of law enunciated so recently by the House of Lords. -had been threatened by her boyfriend (a violent gangster/drug dealer) to carry out a burglary 10Sale3Sale4Purchase3,Sept.30Sale5Units110575380225680270290230240PurchasePrice(perunit)$7.107.207.507.70SalePrice(perunit)$12.0012.0012.0012.5012.50. Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Alliott and Mr Justice Buckley, MR PAUL WORSLEY QC and MR KENNETH GILLANCE appeared on behalf of THE APPELLANTS, MR MALCOLM SWIFT QC and MR TIMOTHY ROBERTS appeared on behalf of THE CROWN in the case of SMURTHWAITE, MR DAVID GRIPTON appeared on behalf of THE CROWN in the case of GILL. Arising from that situation, there was . A manager of the satellite division has asked you to authorize a capital expenditure in the amount of $10,000\$ 10,000$10,000. duress because his wife and child were threatened with death or serious injury. R v Bowen (Cecil) [1996] 4 All ER 837. Thus, the fact that the evidence has been obtained by entrapment, or by agent provocateur, or by a trick does not of itself require the judge to exclude it. him and his family. A The defendant was disqualified from driving and his wife threatened to commit suicide unless he drove her son to work, his conviction was quashed due to duress of circumstance. The Court of Appeal dismissed his appeal. . EmployeeHourlyRateRose$9.75\begin{aligned} The Poisson and negative exponential distributions appear to be relevant in this situation. His aim was to argue that this characteristic of vulnerability should be attributed to the reasonable man when the objective test (see above) was applied. -problem with this case is that the ratio is confused and could be that: It is pure chance that the attempted murderer is not a murderer.. 4- in Martin they say duress of circumstances is the same as duress of threats - tests are the same Summary of this case from Commonwealth v. Tillotson Clarkson argued that it is unduly harsh to sentence someone to life imprisonment for failing to reach such heights. a) Seriousness of Threats ', 'A person shall be guilty of an offence punishable on summary conviction with a fine of not more than @ 200 or with imprisonment for not more than six months, or with both, in any of the following cases [and then there are a number of cases set out; the first is:] (a) if, without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act [and then:] (c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true', 'An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft [and certain other persons] for the purpose of determining -- (a) whether any of them is or is not patrial; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave. -first question (subjective) - was the defendant, or may he have been, compelled to act as he did because, as a result of what he reasonably believed had been said or done, he had good cause to fear that if he did not act as directed he would suffer death or be caused serious physical injury? There is a mandatory life sentence for murder and a judge cannot consider issues of duress in sentencing. If the threats are less terrible they should be matters of mitigation only. We now give our reasons and deal also with appeals against sentence. costing methods on the balance sheet and the income statement? state where the burden proof lies. On April 13, 1961, the plaintiff was arrested by the Meriden police on a warrant charging him with the crime of concealing property sold under a conditional bill of sale or chattel mortgage, in violation of 53-129. Until these decisions there was no English authority on the point, but there was persuasive authority in the Court of Criminal Appeal in Northern Ireland in R v Fitzpatrick [1977] NILR 20. The following facts are found. The defendant, a man of 23, serving detention for public protection with a minimum term of 16 months, for making a threat to kill, imposed on 27th February 2006, did not dispute but that he had walked out of Majesty's Prison Leyhill on the 18th September 2012 whilst he was serving that sentence there. The defence covers a situation where a defendant is forced or feels compelled to commit a criminal offence because of threats by a person or by the circumstances the defendant finds themselves in. In R V Hudson and Taylor 1971 the Court of Appeal accepted that police protection could not guarantee a defendant would not be harmed. We accept, of course, that R v Sandhu was a case involving strict liability. 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 of duress. \text{Sale 4}&290&&~~12.50\\ Whilst at some stages of his argument he accepted that there is still no substantive defence of entrapment or agent provocateur, at others he contended that, in effect, section 78 afforded such a defence. The defendant was involved in a love triangle with his wife and male lover. * it would result in the situation where the more violent and terrifying the criminal gang the defendant chose to join, the more compelling would be his evidence of the duress under which he had committed the offences charged. -if an operation was performed Mary would die within a few minutes but Jodie would live a relatively normal ad worthwile life \text{Sale 2}&225&&~~12.00\\ Is there an unassailable record of what occurred, or is it strongly corroborated? He was convicted of burglary and appealed against conviction. He sought to apply it specifically to evidence obtained by entrapment, by an agent provocateur or by a trick and argued that the section altered the law as laid down in Sang so as to enable evidence obtained in those ways to be excluded. -COA upheld convictions stating that if the following were satisfied then the defence would be denied: -necessity not a defence to murder Do you think this is a good development? d) Not self-induced \text{Purchase 1, Jan. 18}&575&~~7.20\\ You are of the view, on the advice of medical experts, that The defence must be based on threats to kill or do serious bodily harm. If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it. There must not be an opportunity to avoid the threats by for example going to the police. Is the defence of duress available for attempted murder? * The rule does not distinguish cases in which the police would be able to provide effective protection, from those when they would not. Similar dicta are to be found in the speech of Lord Salmon at page 445 E F, in the speech of Lord Fraser at page 450 B C, and in the speech of Lord Scarman at page 452 F, 454 E H and 456 D. Section 78 of the 1984 Act, provides as follows: "(1)In any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely, to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. What were her gross wages? The trial judge having heard an application to have the interview excluded at an early point and only gave his reasons much later, after all the evidence was heard, and he sought to justify his decision upon the basis of evidence arising in the trial which could not have influenced the decision he had taken earlier. 1- From Willer you have a need for this kind of defence to be recognised This is where the threat comes from circumstances rather than a direct threat and coincidentally these early cases were driving cases. In joining such an organisation fault can be laid at his door and his subsequent actions described as blameworthy: In R v Sharp [1987] 1 QB 353, the defendant was a party to a conspiracy to commit robberies who said that he wanted to pull out when he saw his companion equipped with guns, whereupon one of the robbers threatened to blow his head off if he did not carry on with the plan. (objective), (1) Was D forced to act as he did because as a result of what he reasona bly believed he feared Be prepared to answer the following questions: 1. Regina v Sang: HL 25 Jul 1979 The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur. Thus, the fact that the evidence has been obtained by entrapment, or by agent provocateur, or by a trick does not of itself require the judge to exclude it. The defendant drove on the pavement to escape. Lord Hailsham LC made the following points: * Hales Pleas of the Crown (1736) and Blackstones Commentaries on the Lawsof England (1857) both state that a man under duress ought rather to die himself than kill an innocent. Flower; Graeme Henderson), seminar questions and answers about burden of proof for evidence law, Right to silence questions and answers exam preparation evidence law, Bad character evidence questions and answers exam preparation evidence law, Confessions questions and answers exam preparation evidence law, Seminar questions and answers for evidence law seminar 1, Coursework evidence law legal burden of proof 58%, questions and Answers children and the law, Coursework children and the law medical treatment of children 80%, Unit 8: The Roles and Responsibilities of the Registered Nurse, Introduction to childhood studies and child psychology (E102), Learning and teaching in the primary years (E103), Foundations of Occupational Therapy (160OT), Product Design BSc Final Project Work (301PD), Introduction to English Language (EN1023). And was threatened with violence by his father unless he killed his.... 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