Question 1

Critically assess the development of the defence of duress by threats.

Answer guidance

Students should start by defining the defence, including the subjective and objective tests (R v Graham [1982]; R v Howe [1987]). The threat must be against the accused or family member (R v Hasan [2005]). The nature of the threat should be considered and is of course limited to physical threats of death or personal injury (R v Valderrama Vega [1985]). The objective test stipulates that only certain characteristics of the defendant can be taken into account. The limits of the defence are that those accused of murder or attempted murder cannot avail themselves of the defence (R v Howe) and nor can those who voluntarily associate themselves with criminals (R v Hasan). This first rule may be criticized on the grounds that it is unduly harsh. Lord Hailsham’s reasons for denying the defence in these circumstances could be discussed and assessed. The rule concerning voluntary association may be seen as a public policy argument in supporting the deterrence of criminals in gangs. This, again, may be unduly harsh in some situations such as drug dealing and domestic violence.

Question 2

Mark lives with Anita and James, Anita’s two year old son from a previous relationship. Mark hates James and wishes the boy was dead. One day Anita loses her temper with James when he wets his bed. She attacks James with a poker, striking him on the head. Mark, who is downstairs watching television when this happens, rushes upstairs to investigate the disturbance. He finds James bleeding profusely from a head wound. Mark tells Anita it is all her fault and goes out to the pub without calling for help. By the time Anita calls an ambulance James has bled to death.

Advise the CPS as to the possible criminal liability of Anita and Mark in respect of the death of James. How would your answer differ in the following alternative scenarios:

(a) Anita had an epileptic fit immediately before attacking James and says that she cannot remember the attack

(b) Anita attacked James in a hypoglycaemic state arising from diabetes. She had taken insulin but not eaten. She says that she cannot remember the attack.

(c) Anita attacked James in a hyperglycaemic state arising from diabetes. She had not taken insulin before the attack. She says that she cannot remember the attack.

(d) Anita voluntarily consumed LSD before attacking James. She said that she honestly believed she was wrestling a nest of snakes.

Answer guidance

A variety of defences arises in this scenario. Before discussing these, students should consider whether Anita has caused James’ death. In addition, intention should be discussed. Loss of control under s54 Coroners and Justice Act 2009 may be relevant here as Anita lost her temper. However there is no fear of serious violence, and bedwetting seems unlikely to be extremely grave. She may also fail the objective test – the jury will need to consider whether a defendant of Anita’s age, sex and with a normal degree of tolerance and self-restraint would have acted as the defendant did in Anita’s circumstances. This seems unlikely. Mark may be guilty of gross negligence manslaughter if it is established that he owes James a duty of care and the other conditions of this offence are also satisfied. Alternatively, the Domestic Violence, Crime and Victims Act may be used. On other defences, Anita could argue automatism. Epilepsy will be an internal condition and as such will be considered to be a disease of the mind for the purposes of insanity (R v Sullivan [1984]). Diminished responsibility may be a better option. With regard to (b), again automatism may help her (R v Quick [1973]) but R v Bailey [1993] on self-inducedautomatism  should be noted. In (c) the case of R v Hennessy [1989] suggests that again, the verdict will be not guilty by reason of insanity. In (d), the court will consider the intoxication. On the basis of DPP v Majewski [1977], Anita may be convicted of manslaughter rather than murder as her crime is one of specific rather than basic intent (R v Lipman [1970]).

Question 3

Anne, who was of a nervous disposition and routinely carried a gun because she feared being attacked, was walking home late at night. The street along which she was walking was deserted apart from John, who was approaching Anne because he wanted to kiss her. Anne had been the victim of sexual abuse as a child and there was medical evidence to the effect that he had suffered from psychiatric disorders that manifested themselves in violence as a result. Anne recognised John and remembered him as someone with a reputation for violence. As John approached, Anne noticed that he was reaching into the pocket of his jacket. Anne wrongly believed that he was reaching for a knife and that he intended to threaten her into having sex with him. Anne panicked, took out her gun and repeatedly shot John in the face. John, who was unarmed, died later of his injuries.

Discuss Anne’s liability in respect of a charge to murder, including any defences she may have.

Answer guidance

Start by defining murder (mainly the two limbs of causation and intention to kill). Did she foresee death or personal injury as a result of her actions? The partial defence of diminished responsibility can then be considered. An abnormality of mental functioning is required in the form of a recognised medical condition. As the facts indicate that she has suffered from psychiatric disorders, she can benefit from this defence as long as this abnormality of mental functioning caused a substantial impairment. This would reduce her liability from murder to manslaughter if successful. Self-defence is another option. Section 3 Criminal Law Act 1967 (prevention of a crime) and self-defence at common law (now entrenched in s.76 Criminal Justice and Immigration Act 2008) would both be appropriate here. The Act provides a straightforward restatement of the common law. S76(3) provides that the defendant’s reaction in using force should be assessed on the basis of the circumstances as the defendant believed them to be (R v Williams(Gladstone) [1987]). Did Anne genuinely believe she was in danger? If so, she can be judged on the facts as she believed them to be even if she was mistaken. She may also use the defence of loss of control under the Coroners and Justice Act 2009.