ACCEPT, established for some time that entrapment or the activity of an agent provocateur is not a defence to a criminal charge. Mr Worsley's principal aim was to establish the breadth of the judge's powers, under, section 78 of the Police and Criminal Evidence Act 1984, Mr Worsley's starting point was the decision of the House of Lords in, Briefly, his thesis was that certain rulings in that case have now in effect been reversed by the provisions in. Held: The appeal failed. 582 The Dalhousie Law Journal. JAMES LJ delivered the following judgment of the court: The matter before the court relates to Chaudhry Mohammed Anwar Gill who was convicted on 6th January 1976 at the Crown Court at Manchester before the recorder and a jury of two offences of making a false statement, contrary to the Immigration Act 1971. The basis for the defence was that he had owed money to money-lenders who had threatened him, his girlfriend, and their child with violence if the money was not repaid. The trial judge excluded her boyfriend as not being sufficiently proximate saying that the defence was only available if directed towards a member of immediate family. D must voluntarily join a criminal organisation or gang In R V Hudson and Taylor 1971 the Court of Appeal accepted that police protection could not guarantee a defendant would not be harmed. This presumption can be rebutted if "the contrary is proved". 2023 vLex Justis Limited All rights reserved, VLEX uses login cookies to provide you with a better browsing experience. Convicted of 3. R V Hasan 2005 confirmed that the threat must be very serious. Peter is injured by a falling brick when walking past a building being constructed by Thus, Lord Diplock at page 436 G, said: "The function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. See: In R v Bowen [1996] Crim LR 577, the Court of Appeal held that a low IQ, short of mental impairment or mental defectiveness, was not a relevant characteristic since it did not make those who had it less courageous or less able to withstand threats and pressure than an ordinary person. What can you conclude about the effects of the inventory 4. must have been an active member of the gang when pressure was put on him, -D = driver and minder for a prostitute \end{aligned} On April 13, 1961, the plaintiff was arrested by the Meriden police on a warrant charging him with the crime of concealing property sold under a conditional bill of sale or chattel mortgage, in violation of 53-129. Until these decisions there was no English authority on the point, but there was persuasive authority in the Court of Criminal Appeal in Northern Ireland in R v Fitzpatrick [1977] NILR 20. PRINCIPLE a defence, but House of Lords followed obiter from R v Howe 1987 and held duress will not ', 'A person shall be guilty of an offence punishable on summary conviction with a fine of not more than @ 200 or with imprisonment for not more than six months, or with both, in any of the following cases [and then there are a number of cases set out; the first is:] (a) if, without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act [and then:] (c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true', 'An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft [and certain other persons] for the purpose of determining -- (a) whether any of them is or is not patrial; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave. The defence of duress is not available to persons who commit crimes as a consequence of threats from members of violent gangs which they have voluntarily joined. D must take advantage of any escape opportunities. If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it. This confirms its earlier recommendation in 1997 that duress should be a general defence to all crimes including murder. His reasoning is based on the fact that $2.5\$ 2.5$2.5 million has already been spent over the past 151515 years on this project. His lover was jealous of his wife and he tied a chord around his wifes neck told the defendant to pull which he did and his wife died. For example, in planting a bomb rather than having your family killed. Both defendants were threatened that if they did not lie when giving evidence in court as prosecution witness they would be cut up later. 2012, December 2012. Evaluation of duress and police protection? The defendant pleaded guilty and then appealed. Brainscape helps you realize your greatest personal and professional ambitions through strong habits and hyper-efficient studying. In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? Issue of Promissory Estoppel in the Doctrine of Consideration. This could happen where a person voluntarily joins a criminal gang and commits some offences but is then forced to commit other crimes they did not want to. What is the objective part of the Graham test? prosecution) bears an evidential burden. 2. This is not a UNHCR publication. Browse over 1 million classes created by top students, professors, publishers, and experts. Compare the ending inventory and cost of goods sold computed under all four methods. He also emphasises the Law Commissions recent proposal in 2006 to extend the law of duress to other crimes. Inaction may be due to a lack of parliamentary time. If he was unaware of any propensity to violence, the defence may be available. ", He sought to apply it specifically to evidence obtained by entrapment, by an agent provocateur or by a trick and argued that the section altered the law as laid down in. Estimate the annual wages for these people. R v Hudson and Taylor (1971) Two women gave false evidence in court because R v Bowen (Cecil) [1996] 4 All ER 837. Unavoidable R v Gill (1963) - D stole his employers' lorry because he was threatened with serious violence, but he had been left alone in the employer's yard therefore convicted. Duress is a defence because:-, threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal. What was the nature of any entrapment? (iii) the evil inflicted must not be disproportionate to the evil avoided The defendant joined a group of thieves. Duress was allowed. inventory, purchases, and sales for a recent year: PurchasePriceSalePriceActivityUnits(perunit)(perunit)Beginninginventory110$7.10Purchase1,Jan.185757.20Sale1380$12.00Sale222512.00Purchase2,Mar. R v Sullivan [1984] AC 156 Example case summary. considered; threat of death or serious injury doesnt have to be the sole reason for The defendant was convicted with possessing an unlicensed firearm during a night time raid. induced. Do you think this is a good development? \text { Depreciation on the income statement } & 20 & 20 & 20 & 20 \\ This is the position with respect to the common law defences of self-defence [ R v Lobell 1957], duress [ R v Gill 1963] and non-insane automatism [ Bratty v AG for NI 1963]. The defendant was 16 years old at the time and was threatened with violence by his father unless he killed his mother. 4- in Martin they say duress of circumstances is the same as duress of threats - tests are the same Where there are multiple threats the cumulative nature of threats may be considered but there must still be a threat of death or serious injury. -to get away from them he drove on the pavement and then reported the incident to the police The court upheld his robbery conviction because the people threatening him didnt say rob a building society or else. happened. In Gill, the petitioner was charged in 2018 with, inter alia, DUI-highest rate, and the jury found him guilty. * In the case where the choice is between the threat of death or serious injury and deliberately taking an innocent life, a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. a person is expected to sacrifice their own life rather than take anothers. Each was sentenced to 5 years' imprisonment on each limb of the charge and five strokes . CoA confirmed duress can be used for Class A drug offences and other threats can 5th Jul 2019 Case Summary Reference this In-house law team . The defendant must show evidence that they had no option but to comply with the demands made on them. Microeconomics - Lecture notes First year. There are circumstances where murder could be seen as the lesser of two evils. In each case, the person solicited was an undercover police officer posing as a contract killer. He persuaded a friend to hand over the gun in the middle of the night and intended to go to the police the next morning. (This was subsequently approved by the House of Lords in R v Howe [1987] AC 417. The defendant was involved in a love triangle with his wife and male lover. In such a case a man cannot claim that he is choosing the lesser of two evils. 34 Nbr. Keane, chapter 4 * Characteristics due to self-imposed abuse, such as alcohol, drugs or glue-sniffing, could not be relevant. The defendant claimed that after the first burglary he wanted to give up, but had been threatened with violence to himself and his family if he did not carry on with the thefts. 1- From Willer you have a need for this kind of defence to be recognised (See Smith & Hogan, Criminal Law, Eighth edition 1996, p241-2 for general points made in the House). Why are the decisions in Conway, Martin and Pommell so important? Case Summary PRINCIPLE On appeal what came under consideration was the way in which the jury had been directed. One night after G and K had been drinking heavily, K put a flex round the wifes neck, pulled it tight and then told G to take hold of the other end of the flex and pull on it. * The defendant might be in a category of persons whom the jury might think less able to resist pressure than people not within that category. It is pure chance that the attempted murderer is not a murderer.. Courts didnt consider his low IQ and held that low IQ is not a relevant The trial judge ruled that the facts did not give rise to the defence as the threats had not been directed at the commission of a particular offence, but to the repayment of the debt. As Lord Griffiths pointed out [in Howe] an intent to kill must be proved in the case of attempted murder but not necessarily in the case of murder. -however another condition in Sharp 1987 was that D must have 'knowledge of its nature' - this issue was considered in Shepherd 1987, -D = member of organised gang of shoplifters but they were non-violent threatened as they owed money to someone. self-defence, under duress, or in a state of non-insane automatism then falls on the him and his family. He had done so by applying for a number of 'instant . What is the position if the defendant has an opportunity to seek help but fears that police protection will be ineffective? 58-3, August 1994, Singapore Academy of Law Journal Nbr. XYZ Ltd. Did he have good cause to feat that if he did not act as he did then it would result in death or serious injury to him or another. In summary trials, this exception is governed by S101 of the Magistrates' Courts Act 1980 which provides that the defendant bears the persuasive burden which discharged on a balance of probabilities when he relies on exception, proviso, excuse, qualification, or exemption. Immigration - False statement- Statement to person lawfully acting in execution of statute - Investigation of allegation that accused an illegal immigrant - Statement made by accused to constable investigating allegation - Whether constable 'acting in the execution of' statute - Immigration Act 1971, s 26(1)(c) . 5. -serious physical disability - cannot protect oneself His aim was to argue that this characteristic of vulnerability should be attributed to the reasonable man when the objective test (see above) was applied. He was the lookout/ driver. Munday, chapter 2 Looking for a flexible role? risk of being compelled to participate in criminal activity, duress will not succeed. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. According to your estimate, what happens to the Transit Authority's revenue when the fare rises? -pregnancy - fear of unborn child The court said that the following characteristics were relevant:- age- pregnancy- serious physical disability- recognised mental illness- genderThey also held that self-imposed characteristics caused by drugs, alcohol and glue sniffing could not be relevant. be considered as long as there is a threat to death or serious injury. -problem with this case is that the ratio is confused and could be that: He stabbed his mother and Gotts was convicted of attempted murder and duress was not allowed as a defence, however, the defendant was only placed under a probation order. In joining such an organisation fault can be laid at his door and his subsequent actions described as blameworthy: In R v Sharp [1987] 1 QB 353, the defendant was a party to a conspiracy to commit robberies who said that he wanted to pull out when he saw his companion equipped with guns, whereupon one of the robbers threatened to blow his head off if he did not carry on with the plan. Is there any logic in affording the defence to one who intends to kill but fails and denying it to one who mistakenly kills intending only to injure?, It is of course true that withholding the defence in any circumstances will create some anomalies but I would agree with Lord Griffiths (Reg. -sex, -generally duress can be used for all crimes but it cannot be used for murder, -would depart from decision in DPP for Northern Ireland v Lynch - can find no fair and certain basis to differentiate between participants to a murder and firmly convinced that law should not be directed to the killer, so defence is not available as a defence to a charge of murder or attempted murder, -case followed obiter dicta statement in Howe and stated that duress cannot be used for attempted murder The New York Times reported (Feb. 17,199617, 199617,1996) that subway ridership declined after a fare increase: "There were nearly four million fewer riders in December 199519951995, the first full month after the price of a token increased 252525 cents to $1.50\$ 1.50$1.50, than in the previous December, a 4.34.34.3 percent decline.". True threats are beyond the First Amendment's boundary to "protect[] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V., 505 U.S . PRINCIPLE 6. These events were repeated on a second occasion but this time it was Howe and Bannister who themselves strangled the victim to death. 5- Pommell effectively made it a general defence - same as duress of threats, applicable to all offences apart from murder/manslaughter, -the circumstances the defendant is in forces them to act in order to prevent a greater evil In Harwood (1989) Crim LR 285, the Court stated, albeit obiter, that section 78 has not abrogated the rule that neither entrapment nor agent provocateur afford a defence to a criminal charge. -all three judges agreed that the doctors would have a defence of necessity and the operation would be lawful. -HOL stated that defence of duress is denied when D foresaw (or should have foreseen) the risk of being subjected to any compulsion by threats of violence She worked the following hours last week: Monday 9 hours, Tuesday 7 hours, Wednesday 8128\frac{1}{2}821 hours, Thursday 6 hours, Friday 9 hours, Saturday 3 hours. Do the same principles of duress of circumstance apply if the threat is from a person? defence in issue has already emerged during the trial, the defence (rather than the If it was obtained illegally, there would be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. July 31, 1984, O'Kubasu J delivered the following Judgment. it can be argued that refusing a defendant a plead of duress to murder is very harsh especially where terrorist organisations have coerced someone into committing a crime by threatening to harm their family. The need is to ensure a fair trial. The defendant was convicted of manslaughter and appealed. The Court of Appeal refused to admit the evidence in both cases because it rejected the argument that the reasonable person should be endowed with the characteristic. -if an operation was performed Mary would die within a few minutes but Jodie would live a relatively normal ad worthwile life Parliament chose not to allow duress as a defence for murder when recommended to by the Law Commission in a 1977 report. In each, the appellant was convicted of soliciting to murder; Smurthwaite to murder his wife, Gill to murder her husband. Subscribers can access the reported version of this case. (objective), (1) Was D forced to act as he did because as a result of what he reasona bly believed he feared believing it would be ineffective. In this case, the House of Lords -when he tried to leave the gang they threatened him and his family with violence if he did not continue Dennis, chapter 11 The defendant robbed a building society to repay debt as he and his family were being threatened. In R v Gotts [1992] 2 AC 412, the defendant, aged 16, seriously injured his mother with a knife. The appeal court held that the trial judge had been correct in withdrawing the defence of duress from the jury: * As a matter of public policy the defence could not be made available to those who voluntarily joined violent criminal associations, and then found themselves forced to commit offences by their fellow criminals. In contract, Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Public law (Mark Elliot and Robert Thomas), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Human Rights Law Directions (Howard Davis), Electric Machinery Fundamentals (Chapman Stephen J. If the defendant seeks to rely on one of these defences, then, unless sufficient evidence to put the defence in issue has already emerged during the trial, the defence . \textbf{Activity}&\textbf{Units}&\textbf{(per unit)}&\textbf{(per unit)}\\\hline - the trial judge stated that the burden of proof was on the defendant Critical point - the COA said that this was incorrect as they said the evidential burden was on the prisoner, but once this burden had been satisfied, it was ultimate burden that was on the prosecution to destroy the defence further point no.1 "-The English authorities are conflicting on whether the defence G did so for about a minute and the wife was killed. costing methods on the balance sheet and the income statement? immediate family, or any person for whose safety D would regard himself as To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. 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The defence was not available where the defendant knew of a violent disposition in the person involved with him in the criminal activity which he voluntarily joined. Subscribers are able to see the revised versions of legislation with amendments. He was not allowed the defense of duress because he failed the second limb of the test. The Court is not concerned with how it was obtained. Judgement for the case R v Clegg D was a soldier on duty in NI. This would in practice abolish the principles from Howe and Gotts. For December 31 of each year, determine (a) the temporary book-tax difference for the depreciable asset and (b) the balance to be reported in the deferred tax liability account. When charged with burglary, the defendant raised the defence of duress on the basis that whilst he had willingly participated in the crime initially, he subsequently lost his nerve. c) Imminent These events were repeated on a second occasion but this time it was Howe and Bannister who themselves strangled the victim to death. Mr Worsley's starting point was the decision of the House of Lords in Sang (1980) AC 402. (Note: Use four decimal places for per-unit calculations and round all Ds actions. A two-part test to succeed in Duress by Threats was established in R v Graham (1982), where D was ', '(a) if, contrary to this Act, he knowingly enters the United Kingdom in breach of a deportation order or without leave; or (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either -- (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave', 'A constable or immigration officer may arrest without warrant anyone who has, or whom he, with reasonable cause, suspects to have, committed or attempted to commit an offence under this section other than an offence under subsection (1)(d) [which is not applicable here]. The defendant pleaded not guilty and said that he had complied with Ks demand to pull on the flex only because of his fear of K. The judge directed the jury on the defence of duress (too favourably) but the defendant was convicted. He claims damages in negligence. (2)Nothing in this section shall prejudice any rule of law requiring a Court to exclude evidence. If the The defendant imported cocaine and said he received threats of death, exposure of his homosexuality to his wife and he had high debts. It is generally accepted that threats of violence to the defendants family would suffice, and in the Australian case of R v Hurley [1967] VR 526, the Supreme Court of Victoria allowed the defence when the threats had been made towards the defendants girlfriend with whom he was living at the time. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Public law (Mark Elliot and Robert Thomas), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Human Rights Law Directions (Howard Davis), Electric Machinery Fundamentals (Chapman Stephen J. - The first part of the test requires duress to be serious, unavoidable, imminent and not self- -age - young and old can be susceptible to threats The defence must be based on threats to kill or do serious bodily harm. Bowen had obtained a number of electrical goods, over a series of visits to the value of 20,000. First, an accused who raises insanity or insane automatism as a defence (or who argues The defendants were convicted of perjury following the trial judges direction to the jury that the defence of duress was not available because the threat was not sufficiently immediate. the decision in R V Hasan 2005 reflects the courts concern that the defence of duress was being relied on by the defendants who were involved in organised crime and that the scope of the defence needed to be narrowed so that it would succeed less often. Reference this Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. The same principles of duress apply whether the threat is from a person or from the circumstances they are in. The defence is only available if the defendant commits an offence of a type that was nominated by the person making the threat. -COA quashed conviction, re-instated by HOL (i) the act is needed to avoid inevitable and irreparable evil; Duress of circumstances has been recognised since the 1980s. \text{Sale 4}&290&&~~12.50\\ If a person under duress is able to resort to the protection of the law, he must do so. In each case, the person solicited was an undercover police officer posing as a contract killer. Compute the cost of ending inventory and cost of goods sold using the average cost inventory costing method. overruled R v Lynch (1975), which previously allowed secondary offenders the defence of It is arguable that decision in R V Wright 2000 and R V Shayler 2001 are a sensible development in the law expanding categories of allowable victims. Twelve Asians who did not have leave to enter the United Kingdom were concealed in boilers in Rotterdam. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.". The Poisson and negative exponential distributions appear to be relevant in this situation. (See also R v Governor of Pentonville Prison ex parte Chinoy [1992] 1 All ER 317 at page 331332 to the same effect) "Fairness of the proceedings" involves a consideration not only of fairness to the accused but also, as has been said before, of fairness to the public (see e.g. \text { Depreciation on the tax return } & \frac{(80)}{(0)} & \frac{(0)}{(0)} & \frac{(0)}{\$ 420} \\ or serious injury (subjective), (2) Would a sober person of reasonable firmness, sharing Ds characteristics, have acted in the same D, believing V to be hostile to him, braked so that V fell off and ran over him, causing GBH. He raised duress as Horace is raising the defence of duress. It is not a defence merely to show that there had been entrapment or the use of an agent provocateur, but the Judge has a discretion to exclude the evidence obtained if it would be unfair to use it. How active or passive was the officer's role in obtaining the evidence? 3, December 2010, Journal of Criminal Law, The Nbr. \text{Sale 2}&225&&~~12.00\\ Andrea Marshall is paid $10\$10$10 per hour for a 40-hour work week, and time-and a-half for hours over 40 per week. burglary, and extended Hudson and Taylor to say that the threats must be In 2006 to extend the Law of duress because he failed the second limb of the House Lords... Court to exclude evidence a defence to all crimes including murder Smurthwaite to ;... The decision of the Graham test not have leave to enter the United Kingdom were concealed in boilers Rotterdam..., inter alia, DUI-highest rate, and experts was involved in a love triangle his... Inaction may be due to self-imposed abuse, such as alcohol, or! Nominated by the person solicited was an undercover police officer posing as a contract killer this shall. In Gill, the Nbr were threatened that if they did not lie when giving evidence in as... Not have leave to enter the United Kingdom were concealed in boilers Rotterdam! Person is expected to sacrifice their own life rather than themselves defendants could not be.. Victim to death or serious injury 2 ) Nothing in this case versions of legislation with amendments of Lords Sang. Group of thieves and the income statement 's starting point was the decision of the charge and five strokes the! Allowed the defense of duress to other crimes professors, publishers, and experts he raised duress Horace! Was threatened with violence by his father unless he killed his mother were threatened that they! A general defence to all crimes including murder would have a defence of duress of circumstance apply if the joined! Passive was the way in which the jury found him guilty 1980 ) AC 402 defence is only available the... Was unaware of any propensity to violence, the defence of necessity and the income statement years! In NI point was the decision of the test -all three judges agreed that the threat is from person... [ 1987 ] AC 156 example case summary does not constitute legal advice should... Not constitute legal advice and should be treated as educational content only as the of! Round all Ds actions would have a defence to all crimes including murder made treasurer a. Of & # x27 ; instant 2 AC 412, the person making the threat must very! Howe [ 1987 ] AC 417 with the demands made on them circumstances. A group of thieves PRINCIPLE on appeal what came under Consideration was the decision the. V Hasan 2005 confirmed that the doctors would have a defence to crimes. In which the jury found him guilty risk of being compelled to participate in criminal activity, duress not. Petitioner was charged in 2018 with, inter alia, DUI-highest rate, experts. Police officer posing as a contract killer that they had no option to. 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Gill to murder his wife and male lover having your family killed be lawful and exponential. Sheet and the jury had been directed a criminal charge according to your estimate, what to... Subsequently approved by the House of Lords in R v Sullivan [ 1984 ] AC 156 case! Issue of Promissory Estoppel in the Doctrine of Consideration revenue when the fare rises objective of! Way in which the jury found him guilty if he was unaware of any propensity to violence, the may. Aged 16, seriously injured his mother with a better browsing experience in R v Gotts 1992... Case R v Howe [ 1987 ] AC 417 created by top students, professors, publishers, and Hudson! Of the test such as alcohol, drugs or glue-sniffing, could not be said be! Enter the United Kingdom were concealed in boilers in Rotterdam was threatened with violence by his father unless he his. V Clegg D was a soldier on duty in NI, Gill to murder her husband Bannister who themselves the... 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This confirms its earlier recommendation in 1997 that duress should be treated as educational content only choosing! The value of 20,000 the doctors would have a defence of necessity and the would! Sheet and the operation would be lawful the circumstances they are in risk of being compelled participate! Should be treated as educational content only some time that entrapment or the activity of an agent provocateur is concerned. Munday, chapter 2 Looking for a day at AIMCO, Inc. AIMCO develops technology for video conferencing advice... Help but fears that police protection will be ineffective opportunity to seek help but fears that police protection be...