Defence: Duress by threats

Question 1

Duress can be used as a defense for all crimes apart from…? (include cases)

Answer 1

Murder (R v Howe 1987): ‘the ordinary man should be capable of heroism if he is asked to take an innocent life rather than sacrifice his own’

Attempted Murder (R v Gotts 1992)

Accomplice to Murder (R v Wilson 2007): even if D is young, weak or vulnerable

Question 2

There are two types of duress. What are they? (with definition)

Answer 2

1. Duress by Threats:
   D is threatened with violence to take action by another person
2. Duress of Circumstances:
   D is required to take action due to the circumstance they are in

Question 3

Duress by threats - requirements needed.

Answer 3

1. The threat must be of death or serious injury
2. Threat must be against D or someone close to D
3. The crime to be committed must be specific
4. The Graham test needs to be passed
5. The threat must be ‘imminent’
6. Must be no possibility of escaping the threat

Question 4

The threat must be of death or serious injury - cases and what is classed as “sufficient” enough

Answer 4

Property damage and psychological harm is not enough

Shayler - MI5 - has to be specific intent
Baker and Wilkins - psychological
Valderrama-Vega - reputation damage not enough
Ashley - threat to rape is sufficient

Question 5

Threat must be against D or someone close to D - case

Answer 5

Has to be someone close to D like family, though sometimes can be others like if a cashier feels responsible towards a customer

Martin (Cohn)

Question 6

The crime to be committed must be specific - cases

Answer 6

Must be forced to do a certain crime. Must be a sufficient nexus between threat and crime (Cole).

Question 7

The Graham test needs to be passed - what are the two tests that are asked?

Answer 7

1. Was D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death?
2. If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way

Question 8

The Graham Test - cases for each test

Answer 8

Was D compelled - Martin (DP) - can take D’s mental condition into account

Sober reasonable person - Bowen, Flatt - sex, age, pregnancy included in characteristics. Sexuality, self-induced intoxication and suggestibility not included.

Question 9

The threat must be ‘imminent’ but not ‘immediate’ - case

Answer 9

Imminent means soon, doesn’t have to be immediate

Abdul-Hussain

Question 10

What were the three rules mentioned by the CoA in the Abdul-Hussain case?

Answer 10

1. There must be imminent peril of death or serious injury to the D or those for whom has responsibility
2. The jury must agree that this peril was in D’s mind at the time of the offence so as to overbear D’s will
3. Execution of the threat does not need to be immediate

Question 11

There must be no possibility of escape - cases

Answer 11

Gill
Hudson and Taylor

Question 12

Duress and Gang Membership - case and rule

Answer 12

R v Hasan 2005

Rule: If D voluntarily associated with others who are engage in criminal activity, and they foresaw or ought reasonably to foresee the risk of being subjected to any compulsion by threats on violence, then the defense will not be available.