a close-one-eye guide to duress and some ranting

What is duress?

I point a gun at your head, say that it's loaded and further delve into the fact that if you don't transfer the money from so and so's account, which is a fraud, I'll blow your motherfucking head to a billion pieces then I'll probably go after your children.

That, my friends, is a circumstance of duress.

There's 2 types of duress.
(a) Duress of Circumstance
(b) Duress of Necessity

(a) is when the duress is basically the event occuring in the above example, where there is a definite and apparent fear of death or bodily harm whether on the defendent or on another and can only be accepted in the objective view of the 'reasonable man'. Another point to take into consideration is the time taken for committing the crime as a direct and immidiate response to the threat, therefore, causing a lapsed time would nullify the defence.

The locus standi for duress of necessity would be the case of R v Martin [1989] where the defendant had driven his stepson to work although he was disqualified from driving. He claimed that he had done this because his wife had threatened to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out her threat. The Court of Appeal allowed the defendant's appeal against his conviction, as the defence should have been left to the jury.

At the point where time of crime being committed is concerned, the case of R v Coles [1994] where At the defendant's trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him and his girlfriend and child. The trial judge ruled that no defence of duress was open to the defendant. Dismissing the defendant's appeal against conviction, the Court of Appeal held that the defence of duress by threats was not open to the defendant because the threateners had not nominated the offences which he had committed. Nor, the Court held, was the defence of duress of circumstances available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the ommission of the offence had been a spontaneous reaction to the prospect of death or serious injury. Note: the connection between the threat and the offences was not as close and immediate as in Willer, Conway and Martin, where the offences had been virtually a spontaneous reaction to the physical arising.

(b) is where, as the term suggests, the accused is forced by a mere necessity to commit a crime. This is not available as a defence to a criminal charge simply because. With the general rule, however, there are always exceptions. For this being that services such as the police cars, fire engines and ambulances are exempt from being charged with things such as running the red light.

The locus standi for duress off necessity is R v. Dudley & Stevens [1884] where 3 members of a crew were cast adrift as they were shipwrecked and the defendants had decided that if they were to survive, they would have to kill and live on the already 'weak and dying' cabin boy, as they had simply put it. The defendants were sentenced to death, but this was commuted to six months' imprisonment.

As quoted from Lord Denning on justifying the rule:
"… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."

Another case where duress of necessity is taken into account is R v Bourne [1939] where a gynaecologyst had performed an abortion on a young girl for fear that if he did not, both would die. The act was given concent by her parents and herself. He was found not guilty for 'unlawfully procuring a miscarriage' following a direction from the trial judge to the jury that the defendant did not act "unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted in good faith, in the exercise of his clinical judgement.

Currently, duress is not a viable defence for murder but is thoroughly discussed in the Law Commission Report Number 177.
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See how my brain has fluctuated to the extent as to write note in my blog?
*sigh*
I need to go print out some stuff...
*runs off at 10pm and returns smugly at 10:15pm*

Tomorrow:
9am - Contract Lecture
11am - Academic Wing meeting
1:30pm - Consti Tuts
3pm - Crim tuts: Duress

I must recommend James Morrison to your ears. He is very soothing to the savage beast. hahaha!!! Truly! I shit you not. He brought back good music. A'la funk.

I'm compiling some happy/soothing songs for dear Ezzy... she's not feeling too awesome.

Cheers!

don't simply sign things

This post is curtesy of the Exclusion Clause a derivative chapter off the Law Of Contract. Blame them.

The exclusion clause.

Is very, very irritating because the main emphasis is all those grandmother stories on the common law control and statutory control over the thing.

In the common law bit, Lord Denning (the old pissfart with too much to say but is, in all our minds, the greatest man there ever lived to cause so many problems for law students) didn't like the exemtion clauses because it's used by BIG companies to pick on small companies but hang on a moment... What is an exclusion clause?

An exclusion clause is in all factual means a way to get your butt out of trouble with regards to a contract that you may have signmed a fortnight ago. In more refined legal jargon-esque english: a party to a contract may seek to avoid incurring liability for certain breaches of the contract or may specify that their liability for a particular breach in the contract will be limited to whatever they had specified, usually to whatever amount in damages.

Example...
Assuming that you go to to Tioman for a USD 5000 (say that you're an undernourished student with a lack of funds) diving trip and have your trusty underwater camera with you. You snap alot of pictures of very pretty sealife and that harassing moray eel that is particularly camera shy and you're very happy with what you have. Assuming you are using a camera which still uses film. Kodak film. You come back to your country of origin and go to your film developer. A half assed pink-pop bubblegum chewing dolt behind the counter picks up your film and passes you a paper. You sign it. A week later you happily shove your face into the shop and demand your amazingly professional shots and she shrugs and says that she's over exposed it and accidentally left the film in acid so it's now lost forever. You get angry and demand to see the manager to threaten to sue for emotional damages. The dolt behind the counter swings her locks of blonde hair, glares at you in a very cocky manner and points out that you have just signed an exclusion clause which states that the shop bears no liability whatsoever to any film lost or damaged and if so would only replace with another film canister. All you can do now is tell the manager to fire the incompetent little shit and go home morose beating yourself up over a tub of icecream.

Boo-hoo.
Back to the bits from the common law.

Common law...
*read read read squints read mumbles read swears read nods and cracks fingers*
... points out that the bums in the court had made life harder for the BIG firms and probably the rest of us by making questions to regulate an eclusion clause. Firstly, by questioning whether or not the clause had been incorporated into the contract and secondly, whether the words used in the clause can be construed as covering the alleged branch.

There are several ways in which you can incorporate a clause into a contract and they are:
(a) by signature
(b) by reasonable notice
(c) by previous course of dealing

(a) is pretty easy. It means that if you sign an agreement of some sort, you have therefore understood and accepted all terms within that paper even if technically you didn't bother to read anything thats written on it.

See the case of L'Estrange v Graucob (1934) where a woman had signed a hire-purchase agreement for a cigarette vending machine but didn't read it. The agreement had in it, in tiny prints, a large basis of exemption from liability for the product. The machine proved defective and she couldn't do anything about it as she was bound to the clause, and therefore had no remedy.

Of course the rule doesn't apply when there is a misrepresentation as to the nature of the document signed.

See the case of Curtis v. Chemical Cleaning and Dyeing Co. (1951) in which Ms. Curtis had brought a dress to the cleaners where they had asked her to sign a document which exempted the cleaners from being liable for 'any damages however arising'. When she enquired, it was said that the document merely stated that the cleaners would not accept any liability on the sequins and beads on the dress. She signed it. When she came back to collect her dress, there was a new stain which was not there previously but the cleaners denied liability. The Court of Appeal held that the cleaners could not rely on the document since there was a misrepresentation.

(b) means that the terms can oly be incorporarted if the person had enough time to consider them. It very much depends on the mode in which it was presented.

See the case of Parker v. South Eastern Railway (1877) where the palintiff left his bag in the cloakroom and collected a ticket after paying 2p. The front of the ticket had the opening hours of the cloakroom and the words 'See back'. Upon his return, the bag was missing and when he went to claim the amount he only got back 10 pounds since it was written in the back of the ticket. The Court of Appeal stated that the party could have been deemed to have reasonable notice.

Things that should be taken into account would be (1) time of notice, (2) form of the notice and (3) effect of the clause

(1) Olley v. Marlborough Court Ltd. (1949) where a married couple booked into a hotel for a week, and then went to their room. On the wall, they found a notice which states that the hotel was not liable for the loss of the guests' property. Mrs. Olley returned to the room after a day out and found that she had her fur coats stolen. The hotel disclaimed any liability relying on the notice but the Court of Appeal held that the words had not been incorporated into the contract since it came to the Olley's notice too late. The contract was signed at the front desk, and a new term could not be imposed on them when they reached their room.

(2) Chaperlton v. Barry (1940) where the plaintiff had hired 2 chairs and upon hiring had recieved 2 tickets which he kept in his pocket. When he sat down on the chair, it collapsed and caused some injury. He sued the appalent who relied on the fact that on the tickets it stated that they were not liable for 'any accident or damage arising from the hire of the chair'. The Court of Appeal held that the clause was not part of the contract as the ticket acted only as a reciept and the resonable man wouldn't have expected it to contain contractual terms.

(To be continued when I feel like it...)