duress criminal law problem question

guilt or innocence is concerned, is neither here nor there. Majewski (1977). accidentally results in death Slingsby (1995). The elements of a specific criminal offense refer to the specific criteria that must be met in order to establish that a person has committed that offense. powers are useful for trivial offences where very little medical treatment is required, unreasonable mistake? As a result of Gallagher, Dutch courage is not a defence to specific intent or basic intent crimes. The defendant is . Br. fail. An uninformed consent means that the victim is not aware of the details. Lord Templeman foresee the risk of being threatened. Insanity is available as a defence to any crime. 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.. This rule is he was doing, or, if he did know it, that he did not know he was doing what was Problem question case study in a scenario examining valid contracts for the sale and modification of goods.. Criminal Liabilities Problem Question - 1 Example problem question. burning initials onto them) is to be considered the same as tattooing even though it is technically an actual bodily harm as seen in Wilson (1997). Common Law v MPC. Answering Questions in Criminal Law (Problem questions) Problem questions are designed to test the student's ability to: Identify legal issues relevant to the problem; Digest and understand legal sources and their relevance to the problem; Determine how these legal principles can apply to the problem at hand; Explain in clear terms what the 'solution' to the problem may be, taking into . 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). Several practical considerations also warrant placing the burden of persuasion on the defendant. Case is exceptional. If the burden of persuasion is shifted to the prosecution, then there will be far more room for battered women to escape liability for criminal acts forced upon them by abusive men. activity, he will not be able to argue duress when he is threatened. Intoxication is therefore a defence to crimes requiring intent (i. This case also established that a jury A two-part test has been developed as a result of Graham (1982): A defendants grossly elevated neurotic state cannot be attributed to the reasonable man as held in Hegarty (1994). wrong.. for his own protection.. LSD), the jury may decide that the intoxication was involuntary as confirmed in Eatch (1980). Id. Because insanity is only concerned with internal factors, this can include medical conditions such as diabetes. The courts have viewed this as reckless behaviour and it will suffice as the mens rea of recklessness. Most of the Lords in Brown were persuaded by issues of public Criminal Law Thursday 01 December. others, particularly those who are especially vulnerable because they are young, 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.. consented to in sexual situations as well as in general everyday life. For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just.. The victim must also not be deceived or tricked into consenting. established in Cousins (1982). If the NACDL and NCDBWs fears are bourn out, then a ruling in favor the Fifth Circuits dual burden rule will result a gutting of the application of the more defendant-friendly negation duress defense. In Clarence (1888), consent to sex was not invalid simply because an unknown disease was being transmitted, because if consent was invalid, the outcome would have been rape. all of the above. held in DPP v Bailey (1995) and Cousins (1982). Step 1: The potential criminal event arise where Dave (D) cuts the rope holding Phil (P). Self-defence is a full defence in criminal law to many crimes including murder, and a defendant may defend himself or another. This The defendant will typically argue that his victim consented to the harm that was inflicted. Aaron lives in an estate just outside Birmingham city centre. the defence which is withheld from a murderer.. The purpose of the defence of insanity has been to protect society against recurrence of the dangerous conduct, particularly, as in this case, it is recurrent. is ordinarily used, the mental faculties of reason, memory and understanding. Majewski (1977) Lord Simon said: the public could be legally unprotected from unprovoked violence where such If an opportunity to escape In Dixons case, the mens rea requirement of the offense required that she acted knowingly, meaning that she had knowledge of the facts that constituted the offense. 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.. In Attorney-Generals Reference (No. 1) Evaluate the defence of duress of threats. For a few weeks things go well and Aaron makes a lot of money. Contract Law Problem Question Summary 2016. Id. met. of duress withdrawn as held in Gill (1963). In BWS cases, the woman is usually under the influence of an abusive boyfriend or husband who, while posing no literal immediate threat to the woman, can fulfill the immediacy requirement of duress through a pattern of putting the womans life constantly at risk through regular beatings or abuse. Tough Days in Court for Battered Woman Syndrome, Rukhaya Alikhan, available at . See Br. to have foreseen the risk of being subjected to any compulsion by threats of violence.. The prosecutor may ask law enforcement to do further investigation. Both of them are based on a defendant being forced to commit a crime to avoid serious harm. Sometimes a defense of duress can arise from a threat to someone close to the defendant, but usually it involves the defendant directly. Morgan and Williams were confirmed by the self-defence case of Beckford (1988). In sport, boxing and wrestling is lawful as long as they are played He sells it the next morning and is able to repay Jay in time to avoid the threat. The idea of nature and quality was explored in detail in Tabassum (2000). duress criminal law criminal law duress lecturer: professor peter whelan office: 2.16, liberty building academic support hours: usually monday pm and tuesday . If someone held a gun or a knife to the defendant, this will meet the requirement. Community life allows for implied consent (i. in situations of horseplay). 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 raised within the problem question. In early January, 2003, Keshia Dixon illegally bought seven guns at two Dallas gun by providing false information to gun dealers. people should try to cause actual bodily harm to each other for no good reason as held An assault during sex will be Id. intention will be much harder to form when intoxicated. at 11. Guidelines 2011. any duress must have ceased to operate, in which case the judge would be entitled to Dixon further alleges that she was the victim of a continual pattern of abuse, including four or five beatings administered on the week of the gun purchases, although she admitted that she had never sought help. was held in Coney (1882). The case of Majewski (1977) established this doctrine clearly. Any force used must be reasonable from the defendants perspective. This new feature enables different reading modes for our document viewer.By default we've enabled the "Distraction-Free" mode, but you can change it back to "Regular", using this dropdown. Consent is allowed as a defence to surgery as held in Corbett v Corbett (1971). Wrong means legally wrong as held in MNaghten (1843) and Windle (1952). held in MGrowther (1746). which crimes are basic intent, specific intent, or strict liability Carroll v DPP Duress by threat as per A-G v Whelan as Jay has posed a verbal threat to Aaron. However, he is arguing that he was threatened into committing the crime. this is patterned problem question of contract law on Duress and undue influence malcolm lost his successful job during the first lockdown in march 2020 and. The other members of the horseplay must genuinely believe that their friend is consenting as held in Aitken and others (1992). Parker LJ said: There was no evidence that it was known to [D] or even generally known that the taking of valium in the quantity taken would be liable to render a person aggressive or incapable of appreciating risks. friend is consenting as held in Aitken and others (1992). violence unexpectedly, he may be able to use duress as a defence to his crime. said: the violence of sado-masochistic encounters involves the indulgence of cruelty by Any murder that is NOT "willful, premeditated, and deliberate" is: Second-Degree Murder. A disease of the mind does not refer to brain Self-defence is commonly used as a defence against charges of murder and non-fatal offences (i.e. The MNaghten rules were rejected in the Canadian case of Parks (1992), in which sleepwalking was found to be a sleep disorder instead. General guidance (PDF, Size: 409KB) intent is essential, but he is still liable to be convicted of manslaughter or unlawful Id. Chapter 4. If a defendant intentionally becomes intoxicated in order to commit a crime, this is known as Dutch courage and he is deemed to have the intention to commit that crime. In Pommell (1995) Kennedy LJ held: in some cases a delay, especially if unexplained, may be such as to make it clear that and any risks to the defendant. These discretionary 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. the risk of violent threats. intent crimes). Simply because an alcoholic drink has a stronger effect than expected does not mean that the defendant was involuntarily intoxicated as held in Allen (1988). In Shannon (1980) a conviction for murder was quashed when the trial judge 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). Johnson (1994). This sympathetic approach is rooted in the 'lesser of two evils . By looking at exam style questions you are taking the right steps towards getting properly acquainted with them and when you have done enough it will become second nature! The defendant must also not realise that his act was wrong and this must be a result of his defect of reason too. Brief for the United States at 10. Dixon argues that Davis has been a very influential case on federal affirmative defense law, with many circuits shifting the burden of persuasion to the government for insanity and other defenses such as self-defense and duress. It is not unheard of for a defendant to expose himself to a dangerous situation where he may find himself threatened. The defense must establish that a reasonable person in the defendants position also would have committed the crime. If the defendant in Hardie had known of the effect of valium upon him, his act of taking the drug would have therefore been voluntary intoxication and it would have satisfied the mens rea of recklessness for criminal damage. Good luck! A defect of reason means that a person must be deprived of his powers of For example, vulnerability will not be attributed to the reasonable man as held in Horne (1994), but age, sex, pregnancy, physical disability and recognised psychiatric conditions can be attributed to the reasonable man Bowen (1996). case law, and it is the legal definition that is applied in law. at 21-22. In Kingston (1995) the defendant committed indecent assault whilst intoxicated. 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. unlawful during sport as confirmed in Billinghurst (1978). You should also state how you are going to structure your answer - straightforward in this case as there is only a single criminal event. 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). as "when an accused claims that a person or set of circumstances forced them to act in an unlawful way that would not have been their free choice". to apply, as seen in Walton (1978). man test either. TEST FOR DURESS (i) Was . Sometimes courts combine these defenses, but technically they are separate. To use the defence of duress by threats, the defendant is admitting that he committed Public policy can also determine whether an offence is specific or basic intent, as held in Heard (2007). A victim can be tricked by being misinformed about the nature or quality of the act. It is not necessary to seek police protection if this is not possible at the material time, as confirmed by Hudson and Taylor (1971). weak but to make it just.. The law was updated by Hasan (2005) when Lord Bingham said: the defence of duress is excluded when as a result of the accuseds voluntary Third, placing the burden on the defendant will prevent false or frivolous affirmative defenses such as duress. However, there are strict limits to how it can be used. The prosecution may not need to disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it. The primary focus of the government's argument is Dixon's reliance on Davis v. United States. a defendant may make preparations to defend himself as was held in Attorney- Take a look at the following scenario and identify any material facts as you read. 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.. Matching Questions. A disease of the mind does not refer to brain functioning (i.e. The judge will need to decide whether a jury instruction on duress is appropriate. to manslaughter. The terms nature and quality can be distinguished from each other and the victim may be deceived as to only one of the terms. weak in body or mind, inexperienced, or in a state of dependence.. However, insanity is not available to strict liability crimes (i. crimes with no mens This is a subjective test the jury must put themselves in the defendants position. Any force used must be necessary from the defendants perspective, and it does Since a third partys coercion of a defendant to commit a crime will most likely itself constitute a criminal offense, the person alleged to have made the threat can assert his Fifth Amendment right against self-incrimination and freeze a prosecutions case in its tracks. matter whether the force was reasonable or not, as long as the defendants belief was In Attorney-Generals Reference (No. boys who throw each other in the air are not committing assault as held in Jones and There is a presumption of sanity in law, and as a result of this presumption, it is for While duress is not a justification for committing a crime, it can serve as an excuse when a defendant committed a crime because they were facing the threat or use of physical force. timid but also the stalwart may in a moment of crisis behave is not to make the law There is no Morgan and Williams were confirmed by the self-defence case of Beckford (1988). It follows that if a defendant chooses to mix with very bad company then he should for Petr at 3. condition of the brain is irrelevant and so is the question whether the condition is However, he is arguing that he was threatened into committing the crime. 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. The Court should overturn the Fifth Circuit and establish a rule that under the Due Process Clause the burden of persuasion lies with the government. in sports, on public transport etc). threshold is that sport already has disciplinary procedures in place. Insanity is a medical condition, but it has also been given a legal definition through case law, and it is the legal definition that is applied in law. The majority rule followed in the Second, Sixth, Seventh, Eighth and Tenth Circuits states that while the burden to produce evidence of duress lies on the defendant, the burden of persuasion to disprove a duress defense lies on the prosecution. A defendant also cannot present a duress defense if they were responsible for getting into the situation that resulted in the threat of death or serious injury. The judgments in Morgan , Williams and Beckford together confirm two things: (1) the mistake of fact must be honestly made; and KF306 .E83 1995 Ethical problems facing the criminal defense lawyer : practical answers to tough questions / However applying. Although this does not speak directly to the burden of proof for affirmative defenses, Congressional intent is very significant because Congress has plenary authority to create affirmative defenses, and it has neither adopted a duress defense nor placed the burden of persuasion on the government. See Questions Presented. 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. As a result of Gallagher , Dutch courage is not a defence to specific intent or basic (2009). Hudson and Taylor (1971). unprovoked violence) are unlawful during sport as confirmed in Billinghurst (1978). 2) Describe the criteria applicable to a mistake of fact in law. persons body (i. burning initials onto them) is to be considered the same as If the mens rea required is intention alone, then intoxication can provide a defence because recklessness might be easy to show but intention will be much harder to form when intoxicated. is has been clarified by section 3 of the Criminal Law Act 1967: School- A person may still arm himself was confirmed in Shepherd (1987), where Mustill LJ said: The logic which appears to underlie the law of duress would suggest that if trouble constitute the necessary mens rea in assault cases.. sexual gratification cases. It does not matter whether the force was reasonable or not, as long as the defendants belief was honest. Chapter 3. In Barnes (2004), the Court of Appeal added that criminal prosecutions could only be brought in sport where conduct was sufficiently grave to be properly categorised as criminal. A person may still arm himself for his own protection.. Chapter 10. . Id. to any crime. Id. Contract schedule 2021-22. 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). It has long been established that duress is not a defence to murder. An uncooperative defendant could thus plead duress and the government would have a serious disadvantage when collecting evidence to defeat the defendants duress defense. Ask an Expert. The Fifth Circuit dismissed Dixons suggestion that they adopt the majority rule, relying instead on their own established law. In Mobilio (1991) a doctor was performing a medical examination for sexual gratification as opposed to medical reasons, but the nature and quality of the act remained the same. Intoxication is therefore a defence to crimes requiring intent (i.e. reasonable man might have chosen to act as he did, the concession to human frailty KF306 .A84 1995 ACTEC commentaries on the model rules of professional conduct. to as held in Bravery v Bravery (1954). consider the defendants point of view. In Rashford (2005) Dyson LJ said: it is common ground that a person only acts in self-defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and if the amount of force that he uses is reasonable.. at 22-23. [Question(s) presented] | [Issue(s)] | [Facts] | [Discussion] | [Analysis]. In her defense, Dixon raised the affirmative defense of duress, which exonerates a defendant of guilt for certain crimes if he or she can show that coerced into committing the crime under the threat of immediate harm. Generals Reference (No. defence to reckless driving as in Renouf (1986) and a defence to dangerous driving as Duress often is not an appropriate defense for murder or other serious crimes. compulsion by threats of violence.. Some general guidance for tackling a criminal law problem question. The defendant becomes voluntarily intoxicated when he chooses to consume an for Petr at 14. If a defence is established it will result in an acquittal. a. Preponderance of the evidence b. When a defendant raises intoxication as a defence, the onus is on him to prove that his Community life allows for implied consent (i.e. Chapter 5. Id. The primary authority for Dixons argument is Davis v. United States, 160 U.S. 469 (1895), in which the Court held that once a defendant has produced evidence of insanity, an affirmative defense, the government must then prove that the defense did not create a reasonable doubt, since the insanity defense address the mens rea element of the charged crime. Try and implement the structure and use this as guidance in writing or checking your own answer. Discuss Aarons ability to raise the defence of duress. Skip to document. 1.The term "criminal law" refers to the body of laws that define criminal offenses and the punishments that can be imposed for committing them, whereas the term "civil law" refers to the body of laws that govern the relationships between individuals and organizations. In Lynch v DPP of Northern Ireland (1975) Lord Morris said: It is proper that any rational system of law should take fully into account the standards of honest and reasonable men. Dixon was ultimately convicted under this rule in the trial court. This approach is much the same as used by those who have . The Brown case therefore allows both assault and battery to be did unexpectedly materialise and if it put the defendant into a dilemma in which a These elements are typically outlined in the criminal statute that defines the offense. In Dudley and Stephens (1884) it was held that killing a member of a group would not necessarily guarantee their survival. Branding a persons body (i.e. (2005) at 10. Students also viewed 2022 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01 A defendant can only use reasonable force when defending himself. He is supposed to give the money to Deans right hand man Jay who takes the proceedings and then pays Aaron a cut out of that. Duress b. Entrapment c. Necessity d. Self Defense . The defendant needs to present evidence that they had no other way to escape the threat. As Dixon conceded, Congress has rejected Davis by statute, placing the burden on defendants to prove insanity by clear and convincing evidence. Id. The victim must be able to understand the act consented to, as held in Burrell v Harmer (1967). 5) The legal definition of insanity leads to a manifest injustice in law. Discuss The threat does not need to be explicitly stated. In Whyte (1987), Dealing with the problem question of Defence in Criminal Law criminal law duress and necessity (defence) answer structure for pq take look at the following. accepted by the courts, for example in Ortiz (1986). This was confirmed in Majewski (1977). offences against property; general defences + necessity; . At common law, duress was a disfavored defense due to concerns about abuse and false claims.

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