hi everybody in this tutorial we're going to be looking at the last of our general defenses and these are duress and necessity so first of all i'm going to take you through duress and we can break duress down into two types duress by threats and duress by circumstances so i'll take you through the requirements for this defense and then um i will take you through necessity the two because essentially what duress um and necessity are about is um a defendant saying that they were forced to commit the crime um and duress in particular to rest by threats being the most common form of duress to be raised um is a defense where the defendant is saying that they were forced to commit a crime as a result of threats in made against them or um another identifiable person to them like a family member or a close friend and there is a definition of duress that comes from the case of whelan which you can see here on the screen threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted the justification for acts which would otherwise be criminal so if you've committed the crime um under duress because you've been threatened with death or serious personal violence and note that that has to be immediate therefore serious personal violence then that could be accepted as a justification so this if successful is a complete defense so it means that the defendant would walk away from any liability so by nature of that it's very difficult to prove and there are a lot of strict requirement that we will need to go through so essentially the defense negates um the voluntary act um so it negates the act as race in a way because what we're saying is but for the threat the crime would not have been committed so that defendant would not have intended to commit the crime um and certainly did not complete a voluntary act in the true sense of what it says so complete defense for most crimes and this is why we call it a general defense because historically it's been available to all crimes but there are some limitations now and the two main limitations um you will hopefully be familiar with because we've looked at these cases before um are that duress cannot be available to crimes of murder that comes from the case of how it also can't be available to crimes of attempted murder and that comes from the later case of gods now it's interesting that the this is the limitation because when you think about duress and when you watch films that include um this defense being in action you know you often get like a person who has to kill the baddies to save their family or whatever um this is you know a similar kind of duress type instance um they often are not facing criminal charges because they seem to have done a good deed um but actually the reality since the late 80s is that we can't raise um this defense to these really serious crimes even though you could argue that these types of crimes um may be committed quite easily under duress so we'll have a look at the facts of these um just as a so you've got a case of gots and you've got the case of how so in how um this case actually involved more than one defendant um two defendants that appealed were howe and bannister so um howe and his co-defendant and banister is b a double n i-s-t-e-r um they joined a criminal gang um but on the facts they didn't appear to understand the severity in the nature of what the gang um carried out um what they did was they they were party or they were at least present at the torturing and killing of two people and there was a third person that managed to escape so there was um another charge as well now they were both convicted of murder um even though they raised duress and they appealed um to ask the court of appeal to review this case as well they even appealed to the house of lords as it was then and actually what was ruled was that duress should never be available to the crime of murder so this case actually overruled a previous case um called lynch if you see at the bottom where duress was available it was available for a getaway driver who basically was acting for the ira um northern ireland terrorist group um so they were involved in their crimes under threats the law has changed um you never know it may change back but it it's certainly been the same since how and seems to be a real limitation of the of the use of this defense but similarly um this was a crime of attempted murder so this was a young defendant late teens who tried to kill his own mother by stabbing her and when he was arrested he claimed that his father had threatened him so he had acted under duress he too was unsuccessful and actually what the um house of lords on appeal did was that they used the obadictor hopefully you remember that term latin for other things said they used the obita from the ruling of hal which said if this was a crime of attempted murder duress would also not be a defense so they used that part of the the judgment to rule that duress shouldn't be a defense in this case to attempt a murder so if you remember from your law making your presta lessons the overture from how being used to make the decision in god's therefore makes this um principle the ratio design die the reason for the decision it got so bots was also found guilty okay so the two main limiters to start with so essentially um i talked earlier about a defendant um not fully being voluntary um because they are they are being forced to commit the crime um but i guess legally you could argue they make the decision to commit the crime um both physically and mentally um so the elements could still be made out but essentially the way the defense operates is that their full willingness and voluntariness is overbought because they have received personal threats or their family members have received personal threats so the threats have to be having have to have been made against either the defendant a member of their family or by an identical viable person somebody who they are responsible for like in the case of hurley the defendant was allowed the defense when threats were made against his girlfriend somebody who there would be that close relationship and that element of responsibility and of course that comes from um the whelan definition the defense must have been based on the defendant having received um threats of death or serious harm so if the threats are of anything less then this could go some way towards mitigating their culpability in sentence but it's not going to be a defense so there's a case um to evidence this first requirement and that comes from valderrama vega um so love the name baldrama vega was caught smuggling cocaine from colombia he claimed he was under duress from drug barons who threatened to kill him and his family but also to expose his secret homosexuality and the fact that he was under financial pressure so if you think about all of those threats there which one or ones are the most serious which ones would satisfy this requirement so the courts decided that threats to kill him and his family were sufficient but the other threats were merely going to be used in mitigation okay if he was convicted but he was luckily successful so that's the first requirement so when you're summarizing this law you should start with the definition of the defense the limitations in relation to murder and attempted murder and then you can list the requirements so requirement one we've just gone through we'll go through the other requirements in a second but i just want to take you through the test for this defense the test comes from the case of graham so how do the courts determine not just with the requirements but also whether a defendant has genuinely be been acting under duress so the facts of graham um are that he lived with his wife and homosexual lover he'd been taking drugs for anxiety which had made him more susceptible to bullying so um they've both been drinking and his lover threatened him into killing his wife um so if you know this is prior to um howe by the way as well so the trial judge direct directed the jury as to duress but graham was convicted and on a court of appeal this conviction was also upheld they didn't regard the threats as sufficient enough to constitute the defense what they did was they set so the test comes from obviously the case of graham and what what the jury or magistrates if this was a lower level have to consider um are two key questions but firstly it's a subjective element was the defendant impelled to act in the belief that they would be killed or physically injured if they didn't comply with the threats on the evidence did this defendant feel that they had to act essentially and that did they genuinely have that belief that they would be killed or physically injured if they didn't act as directed that's subjective um and if yes to that question then the jury can move on to the second part which is would a sober person of reasonable firmness sharing the same characteristics of the defendant have acted in the same way so this hopefully you've identified is the objective and interestingly if you look at the wording reasonable firmness sharing the same characteristics now characteristics as we've seen with other tests would most likely be age um sex and similar characteristics like that but a sober person of reasonable firmness interestingly graham had been taking drugs for anxiety he was susceptible to bullying would we call him a person of reasonable firmness this indicates that this person has to have no mental health issues or susceptibility to any um weakening of the character if you like so it's a very strange way of looking at it because if you're going to compare graham to anybody who is a person of reasonable firmness he will always fail by nature of that test so it's a real criticism actually um of this test really interesting evaluation point i'll just go into it in a bit more detail over the page so there was a case um a bit later the case of bowen in 1996 where um the defendant had low iq so raised duress but failed on that second part objective test because of course if you're of low iq you're not going to be of average fortitude strength and firmness of mind as i say above so the court of appeal did not allow bowen's low iq to be taken into consideration okay they don't recognize any um additional conditions that the defendant might have so we are purely basing the defendant on characteristics like age and sex that are not susceptible to change so really interesting point we had some later cases two cases that have joined up to appeal um against their convictions um and the um failing of duress hegarty and horn so you can have a look at these cases online all really interesting or to appeal here too rejected psychiatric evidence of vulnerability so if you are vulnerable to threats and you're targeted and you commit to crime as a result of that duress will still not be available to you because you'll fail the second part of the graham test when the jury or magistrates consider your actions against that reasonable person you're gonna fail that's just really um really interesting criticism okay so that's the test um so let's go to back to the requirements we've got requirement 2 which again we could take from the definition this concept of immediacy so immediate death or serious violence has to be the threat so the threat must be unavoidable and imminent and we know from other cases imminent basically means immediate as immediate factually as possible so if the defendant has time to inform the police for example or to avoid the crime the defense will not be available and this happened with gil um in 1963 he stole his employer's lorry after being threatened but on the facts he had time to go to the police before doing so so duress was simply not accepted because the threat needs to be imminent okay the third requirement the threat must have been directed at the commission of a particular offence so i will explain this to you probably best so with the with the leading case coal so the defendant was charged with committing robberies at a number of building societies he raised duress because he said he owed money to people who had threatened him obviously with at least serious harm if he didn't repay now he was convicted and appealed and his appeal was dismissed because the threat was that he had to repay the debt the threat was not to commit a crime so if you think about it he could have potentially taken out a loan borrowed money you have to have been forced to commit a crime um and i suppose you could argue this was an indirect forcing to commit a crime but ultimately this is probably a policy decision where the court's seeking to um make this criteria strict and could you imagine if we allowed more defendants to raise duress because they decided to commit a crime um to save themselves from a debt or from another hardship it really does open the floodgates for those potential offences to be committed and be avoided okay requirement for um really important one and could rule out again a lot of defendants the latest case comes is called hassan essentially what this requirement is is that if you induce the duress you will not be able to rely on it so this really comes from situations where people join gangs you think about al and bannister um they joined a gang although they weren't aware of the nature of the activities or the seriousness of what the gang was involved in i think we would all agree by nature of joining again you should expect or at least foresee the possibility of unlawful activity and that's certainly the line that the courts take so if you induce your duress situation and this could include association with gangs and you then end up being forced to commit a crime you will not be able to rely on the defense so a man must not voluntarily put himself in a position where he is likely to be subjected and that comes from sharp there is a later case of shepard um in that same year 1987 where the court said it would be up to the jury to decide whether this is an association and a foreseeability of the type of conduct you would have to engage in and you see the facts of hasan in the later case 2005 hassan was the driver for a prostitute whose boyfriend threatened him with violence if he didn't commit a burglary he was unable to rely on the defense and um the house of lords as it was then actually termed or coined this type of situation as self-induced regardless of whether he had foreseen that he might be forced to commit a crime through the nature of the activities he was engaging in it was likely but it's up to the jury to decide that it's not necessarily a question of subjectiveness really interesting so that is direct let's just have a look at some scenarios i'd like you to just have a quick read of these please and just identify whether you think these defendants would be able to rely on dress um and if not what the issue might be might they fail on a requirement or the test okay so hopefully um you've had a look at these now so a hopefully you've identified most likely she'd be able to rely um but there may be a question of whether she's induced her situation because she's associating with her boyfriend who has several convictions for violence so hassan may play a part the fourth requirement there for b hopefully you've identified that jazz would be unsuccessful because um the threat was not imminent so gil would be the relevant case there hopefully see you've identified that louis is um again would be unsuccessful because the threats were not serious enough threatening to tell an affair is not serious enough and hopefully you've identified the same for d that paul would not be successful because again the threats are not of death or serious injury for e hopefully you've identified but would likely be successful and for f hopefully you've identified that cath is likely to be unsuccessful because again threat is not imminent okay so let's move on to duress of circumstances really small um because it's very limited usually used in driving offences again requires fear of immediate or imminent death or serious injury and it essentially refers to instances where defendants feel forced to commit a driving offence or an offence because of the circumstances they have found themselves in rather than being threatened so this is more of an indirect um situation of dress rather than a direct so let's have a look at some of the um cases so we've got the test to establish duress by circumstance from the case of martin so martin drove his stepson to work even though he was disqualified because his wife threatened to kill herself if he didn't he was originally convicted but then the conviction was quashed um and duress was allowed and a similar two-stage test to martin um sorry to graham was formed so you've got your first layer um of subjectiveness did the defendant believe that death or serious injury would result were they compelled or impelled to act secondly if so would a sober person of reasonable firmness have acted in the same way so very very very similar almost identical test there and a similar case that you could use in the same year conway defendants sped off from men chasing him not knowing that they were plain clothed police officers um originally convicted of reckless driving and the conviction was quashed by the court of appeal duress was not allowed to be considered at trial but it should have been okay [Applause] so we're now going to move on to our final defense for criminal which is necessity again this is very small um it's very similar to duress of circumstances it refers to situations where defendants feel um that it was necessary to commit a crime through the situation they find themselves in the problem with this defense is that it's extremely rare um rarely successful it wasn't actually considered to exist until the case of ria conjoined twins in other words not that it hadn't been raised but it hadn't really been successful um and hopefully you remember um riya can join twins and the facts so remember there were two twins born um early 2000s and they were conjoined mary and jodie and um jody had all organs to live a functioning life and mary didn't and was effectively the life out of jodie um so the doctors applied to the courts for a declaration that they could separate the twins with an operation um and therefore allow jody to live um but unfortunately as a result mary would not survive the parents opposed the application um of course no parent wants to have to ever make that decision and i believe that there were religious um reasons as well so this case went to the court of appeal this was a civil division case it was a civil application this wasn't the criminal matter but interestingly the civil court or the civil division used criminal principles to make their decision their decision was to allow the operation to go ahead and as far as i'm aware it did and they cited two criminal defenses um if you look on the right hand side of this screen lord justice ward said the court is not a court of morals and i consider the operation would be lawful self-defense i.e the doctors would be coming to the aid of jody so in actually making the judgment they cited that the doctors would be acting in defense of jodie to and and that therefore made the operation lawful and on the left they cited the operation as being necessary and they actually seem in the judgment lord justice brook certainly seems to be forming a test but if you look here the requirements for necessity the act was necessary to avoid inevitable and irreparable evil secondly no more was planned to be done that was reasonably necessary for the purpose to be achieved and thirdly the evil to be inflicted was not disproportionate to the evil to be avoided so essentially we had recognition of necessity and a test being formed but do please remember the facts and the circumstances of ria conjoined twins are so unique that the court of appeal did say it should not set a precedent for future cases every case involving the decision to end a life should not really set a precedent because every case is so unique the importance of this is the relationship between civil and criminal division as i've pointed out but also the formation if you like of this defense of necessity and the what looks like to have been a test so let's have a look at three key cases here where to um sorry necessity has been considered so we've got dudley and stevens which is one that hopefully you're familiar with very very old three men were shipwrecked went without food or water for 20 days um they decided or two of the men decided to kill and eat the cabin boy they were rescued four days later charged with the cabin boys murder and they raised necessity they had to commit murder in order to save preserve their own lives they were unsuccessful so this was not a successful case so it looks like necessity is ruled out for murder then you've got a civil case opposite southwark london borough council against williams and this was a lord benning case so this was where a family appealed against their eviction from an empty council home on the basis that they would be made homeless they cited necessity squatting in the empty council house for necessity which you can totally understand why um so denning um did not allow them to remain in the council home and by way of obita so in the in the judgment he remarked that the same could be applied to those who are hungry um and they claim they stole in order to feed themselves he said this opens the floodgates for offending based on personal necessity in other words he'd never want to allow somebody um at the full defense to theft if they stole because they were hungry seems very harsh doesn't it it would certainly be mitigation um but i guess the role of an appeal judge is to make sure that any decision they make does not open floodgates for further um claims and mass acquittals or convictions on the other hand okay the final case is of shayla so shayla was a former mi5 officer who leaked confidential information to the press and when he was charged under the official secrets act with um this act he claimed necessity he felt it was necessary to alert the public of wrongdoing and the court of appeal um in this case ruled that the defense was not available to him they said that there were no threats of imminent death or serious injury so this is a the most recent case we have and it appears that necessity will certainly not be available for those who appear to be vigilantes if you like um and are not under threat um or certainly with shayla you can see that it wouldn't have been a necessary act in the true tense of it and that um that is the law that is totally the law covered just have a look at the next slide what we have here taking you back to um duress is um an essay plan based on the usual type of question that we look at around the defense being outdated not for purpose in need of reform and you need to evaluate the defense in terms of breaking down the test the limitations the requirements and then of course other other issues as well so i would like you please to have a go at completing this plan i've given you the evaluation points on the left hand side and some more cases to look up and then i would like you to try and develop them and form a plan duress and necessity um have been application questions before certainly duress you're more likely to find in a scenario than necessity necessity has not been assessed by ocr for many years um but where you would more commonly find these um is in an essay question and they could be both lumped together because necessity is so small so it might be um a question requiring you to evaluate both defenses together now of course duress by threats is is the biggest one so it's certainly the one you should focus on but do please make sure that you have notes with the cases for duress by circumstance and necessity as well because they certainly overlap and i've never put it past ocr to give you an essay question on those two so i would like you to have a go at those and there will be opportunity in the autumn to have a go at application okay we have made it so you've finished your smst you've also finished criminal law so very well done we've really worked hard over these last few months to cover such a big area of law and i hope you've really enjoyed it um i absolutely love criminal law i think it's a minefield um and i think there's just so much to talk about in terms of the cases and the evaluation points in your booklets there is a duress article so please do make sure you read that and highlight it as well and if you would like any more application questions please do um email me and let me know but i hope that you found this really useful and i look forward to the next one thank you