What happens in exam, is when students see the issue is they lose the complete analysis. Robbery.
Defence - duress by threats, duress by circumstance or duress by necessity. What’s the difference...case of Cole. He owed money. The lenders said they wanted it back or else. He took it upon himself to steal money. He relied on duress. But he wasn’t told by the gang. Duress of circumstance. He felt he had no choice. Check to see whether the threatenor (gang member) tells the threatee (robber under duress) to rob or not. Here we know he was told to take part in the robbery. That makes it duress by threats, following Lord Bingham HL Hassan.
First question: this is only going to work if the threat is made by death or serious injury. Anything less than that won’t work for a duress defence. Serious injury, what level of harm is that in law (defined by what case: ABH/GBH – serious injury in the case of Saunders. Saunders states that serious injury is GBH. Check in story. He said “break his legs”. Likely GBH. So that would be sufficient threat to say to Alan we can consider it as a defence. Second thing: WHO was threatened? Needs to be the right person. The defendant or someone close to them like a child or a spouse. A relation or someone else close to them. And there’s one other category – someone they feel responsible for. They might not know these people. Yet they might feel responsible for them. Case of Shayler. Example of bombers as obiter – if Someone picked up the phone, told there was a bomb in supermarket, and told to get everyone out – then they feel responsible for the persons even though unknown. Just write in the exam on the relevant bits. No time for more.
Even if there’s sufficient threat:
we need to decide if he reasonably believed he was being threatened he honestly believed it would be carried out, i.e. if there was GOOD CAUSE.
So on this story, can we persuade? Yes – quite explicitly told “do this or we will break your legs”. Nothing needs to be implied. Do we think he had good cause to think? Or is this a wind up? They are well known for their violence – reputation of the gang supports the GOOD CAUSE argument.
Whether or not a reasonable man would have done the same thing. Also an objective test (Bingham in Hassan). We know in law that reasonable people would say they’d not do it, however, law allows us to take characteristics of the defendant and put them onto the reasonable man, this is 2 lists of characteristics that the law allows, and the law doesn’t allow. Allowed: age, sex, mental illness, serious physical disability, pregnancy (we’re more likely to do things aggressively)...Howe (cannot have for murder)...Gottsennet...(?)
CANNOT TAKE INTO ACCOUNT – low IQ, intoxication, whatever falls short of recognised mental illness i.e. vulnerable, emotional, pliable, easily influenced...poverty, (this whole defence is tough to run and judges don’t like it and only clients with really bad defences want to use this – i.e. quite a lot of them!)
Proportionality test used to decide which of these characteristics the defence will use. Is committing the offence the lesser of two evils? What have i been threatened with, etc...Abbotts. Whether a reasonable man would have endured the risk of having his legs broken rather than doing a robbery?
Is location (living on bad estate) taken into account? – CoA subsumed this, but Bingham creates a different question later. Certain characteristics need to be accepted.
The only mitigating factor - a polite robber, the decent ones are nice! But the punishment is harsh so they should be polite.
Can do a robbery with far less harm than what he’s been threatened with, so use that to convince the jury.
Check the nexus between the threat and the crime – check the link between what they were told to do, and what they did CASE OF COLE. He was told to commit a robbery. We’re told he committed a robbery. The better answer will say yes...because.....(then examiner knows you know what the law is and what it requires).
Lord Bingham – whether the defendant could have taken evasive action. The specific question was added by Bingham. If evasive action is possible the defence fails. Harsh. What is the timeframe? The test is, that the robber (under “duress”) will not have been able to take evasive action if the threat would have been carried out immediately or almost immediately. Anything other than that would require evasive action (under Bingham’s obiter), and therefore the WHOLE DEFENCE FAILS. “immediately or almost immediately upon your failure to commit the offence”.
Look at story. See whether prosecution can take advantage of Lord Bingham guidance in Hassan. Time gap. Crown will rely on obiter Bingham. Prosecution will say he had several hours to fix up alternative arrangements. Any legal authorities? (Bingham is not binding). CoA...Obiter Hudson and Taylor...support the arguments pages 180 – 181 obiter comments in the manual. The courts accept the reality of taking evasive action . it may be that effective evasive action is not possible. Look at the circumstances. The risks involved. What steps are open to him. Will they be effective? Court of Appeal generously knows reality. Yet bingham spent a lot of time on the obiter of the ratio in House of Lords. In the exam, look at the time span, check what the court of Appeal in Abdul Hussain as well as Hudson and Taylor.
6 or 7 points to work through with explanation and application on the story. Evasive action usually done badly in exam.
A – Alan is now a gang member. Had voluntarily joined. Only had undertaken Shoplifting sprees. Same process, just now checking that the voluntary association with the gang? Law – case of Sharp – the availability of the defence from Sharp – if you’re in a gang you cannot rely on duress. i.e. shouldn’t go with a gang. Case of Shepherd – it might be a defence if you’re not aware of the violent tendencies when you joined, i.e. gang of shoplifters, no violence, then they turned on him and said you could use the new violence as a defence. Hassan – 2 ways to deal – you can check subjectively whether you foresee the gang would turn on you, you have to see whether he ought to have foreseen the risk that the gang would threaten him to do some violence. The RISK. Not whether they are violent. Whether he sees that they MIGHT turn on him to do violence. OBJECTIVELY. More strict than Shepherd. Just stick with Hassan. Public perception. Difficult to run with real client and jury.
All the elements now.
B – if the client has a damaged leg. Which element affected. Characteristics? The reasonable man with an injured leg, if it is a reasonable physical disability...yes. Another element – circumstances – challenge Lord Bingham’s obiter in terms of taking evasive action. Watch the USUAL SUSPECT! He’s an able-bodied pretend cripple. LOL
How about if the man has borrowed money and has only 2 days to give it back. Or he’ll lose his fingernails. Elements. Nexus. He is NOT told to do the theft. If there’s no nexus there’s no duress by threats. It’s GONE as a defence. So, try to rely on duress of circumstance instead, there are several cases, use Martin – it mirrors everything else, even though there’s no nexus. Element – sufficient threat? Loss of fingernails. Is that GBH in law? No agony, pain horrible, torture is pain and agony to get what they want. Not enough for GBH. Defence council know the jury will be squirming. The prosecution will tell the jury it is not enough. Loss of sensory functions – GBH, disfigurement, BOLLAM – case - that is SERIOUS HARM as to amount to GBH. Cross ref with chapter on Non fatal offences. Then decide if he has good cause to think the threat will be carried out. Yes Reasonable person – would they have turned to crime if asked for that – no they would have gone to mum or dad or Wonga? To save their son’s fingers. There are other things he could have done. Could he have taken evasive action? 2 days. Bingham would say 2 days is long enough to take evasive action. Voluntary association with a loan Shark – do not associate with the gang – Ali case in manual. This defence is riddled with problems from start to finish. Lots of hurdles every step.
SELF DEFENCE – more straight forward. Fewer issues. Making sure we cover all the bases and apply it. Ricky shooting Theo in the foot.
Work out the offense.
GBH. Serious harm intentionally done or not? (because the Actus Reus is the same for both offences, the decision on which to run depends on Mens rea, if there is any doubt, do both. Run through AR and MR for both offenses. Defence. He may be able to raise self defence on these facts. Why is self defence available? Use self defence to protect...your self, other people, property, and s 3 of Criminal Law Act 1977 to prevent another crime from happening. This is a wide defence. It is easy to spot, it is so wide. Once we establish he is defending one of these things we check what is required. The trigger. If you subjectively believe force is necessary to repel: is he under attack? NO. Then did he believe he was going to be under imminent attack? Case Devlin v Armstrong. Yes. Knife in jacket? But he made a mistake thinking it was a knife. Even if he made an honest mistake it’s still ok. Case: Gladstone Williams.
Trigger dealt with. Now, what he did, was it proportionate? Have to have a reasonable response to the attack or threat? This response can take into account what the defendant believed. He shot the man with a “knife”, so the balance argument: put both sides in i.e. he’s showing it was a real gun and only shot in the foot because it was a non vulnerable part... he could have shot the ceiling instead. Heat of the moment? Palmer. He hadn’t weighed up all the options. So he shot in the foot as he was acting in the heat of the moment.
Elements - intoxication – mistake won’t count if it’s because of the drink, you can only have a drunken mistake if you would have made the mistake anyway, drunk or sober. Intoxication – deal in Mens rea. Rules different depending s 20 (basic intent offence) or s 18 (reckless) – need to know, he’s voluntarily intox with champagne (dangerous drug), s 18 is a specific offence
MUST WORK THROUGH THAT TUTORIAL – BASIC INTENT OFFENCE S 20 MENS REA. Make sure you know the rules i.e. intox tutorial 11. Tute 3 Mens rea. tute 2 (result crimes). MUST MUST MUST.
Do all the e-tutorials online. They talk through this.