Defences: Duress Flashcards
what are the two types of duress
-threats
-circumstances
when does the defence of duress by threats apply
when D commits a crime after X threatens to kill or injure D or someone else if D doesnt commit the crime
what are 3 general cases and their legal principles regarding duress by threats
-R v Graham; no binding authority to determine if test of duress shoukd be purely obj or subj
-R v Howe; duress is no defence for murder
-R v Hasan; D must not open themselves up to duress by threats (eg by association with gangs)
what happened/ is the legal principle in R v Graham
-no binding authority to determine if test of duress shoukd be purely obj or subj
-ususally subj then obj?
what happened/ is the legal principle in R v Howe
-duress is no defence for murder
what happened/ is the legal principle in R v Hasan
-D must not open themselves up to duress by threats
-D should have forseen by association with violent drug dealer they opened themselves up to future coercion
what is the high threshold of duress by threats
-D must act in response to a threat of death or serious personal injury
give 2 cases that provide insufficient threats for duress by threats
-R v Singh; threat to expose adultery is not sufficient for defence of duress by threats
-R v Valderamma-Vega; threat to expose homosexuality is not sufficient for defence of duress by threats
what happened/ is the legal principle in R v Singh
-threat to expose adultery is not sufficient for defence of duress by threats
what happened/ is the legal principle in R v Valderamma-Vega
- threat to expose homosexuality is not sufficient for defence of duress by threats
what cases explain what must be assumed in regards to duress by threats
-R v Baker; R v Wilkins; it must be assumed that the events D apprehended were actually gonna happen
what happened/ is the legal principle in R v Baker; R v Wilkins
-CA held that it must be assumed that the events D apprehended were actually gonna happen
what cases explain where threats must come from
R v Rodger: R v Rose; threat must come from source extraneous to D
what happened/ is the legal principle in R v Rodger; R v Rose
-threat must come from source extraneous to D
-prisoners claimed inc tariffs made them suicidal
-escaped prison to avoid threat of death it gave rise to; conv upheld
what case explains the test of reasonable belief in such a threat where none actually existed
-R v Hasan
-association with drug dealer meant D should have foreseen future coercion
what 2 cases explain against whom must threats be directed
-R v Ortiz; at D or others so long as the threats are of death or serious injury
-R v Wright; directed at D, D’s immediate family or anyone D would reasonably regard himself responsible for
what happened/ is the legal principle in R v Ortiz
- threats must be directed at D or others so long as the threats are of death or serious injury
what happened/ is the legal principle in R v Wright
-threats must be directed at D, D’s immediate family or anyone D would reasonably regard himself responsible for
how must D deal with the threat (2 factors?0
(i) D’s belief in / perception of threat
(ii) D’s subsequent reaction to the threat
give 4 legal principles/ cases regarding (i) D’s belief in/ perception of threat
-objective framework
-R v Graham; no bindingauthority on if test for duress should be purely obj or subj
-R v Howe; no defence for murder
-R v Hassan; foresight/ association negates defence
give 5 legal principles/ cases regarding (ii) D’s subsequent reaction to threat (sting of threat)
-age/sex/disability characteristics can be considered
-Emery (1993); recognised psychiatric condition can be considered
-R v Bowen; low IQ not considered
-R v Hegarty; vulnerability not considered
-R v Hurst; effects of child abuse not considered (not imminent)
-R v Flatt; drug addiction not considered (seen as self induced)
what happened/ is the legal principle in Emery (1993)
- recognised psychiatric condition can be considered in (ii) D’s subsequent reaction to the threat/ sting of threat
what happened/ is the legal principle in R v Bowen
-low IQ not considered in (ii) D’s subsequent reaction to the threat/ sting of threat
what happened/ is the legal principle in R v Hegarty
-vulnerability not considered in (ii) D’s subsequent reaction to the threat/ sting of threat
what happened/ is the legal principle in R v Hurst
-effects of child abuse not considered (not imminent) in (ii) D’s subsequent reaction to the threat/ sting of threat
what happened/ is the legal principle in R v Flatt
-drug addiction not considered (seen as self induced) in (ii) D’s subsequent reaction to the threat/ sting of threat
how is causation proven for duress by threat and 2 case examples
-must be a causal link between the threat and D’s act in response
-R v Valderamma-Vega; threat to expose homosexuality
-DPP v Bell; successfully pleaded duress (of circs) to drunk driving to escape danger
what happened/ is the legal principle in DPP v Bell
-successfully pleaded duress (of circs) to drunk driving to escape danger
give 2 cases regarding nominated crimes for duress by threats
-only a defence if D commits SPECIFIC crime nominated by the person making the threat
-R v Cole; loan shark threatened serious violence against D to get money back so D robbed places to get money but insufficient causal link as loan shark didnt tell D to rob anywhere
-R v Ali; D involved with drug dealers and told to rob somewhere or die but dismissed as he knew the nature of the gang when he joined
what happened/ is the principle in R v Cole
-loan shark threatened serious violence against D to get money back
- D robbed places to get money
- insufficient causal link as loan shark didnt tell D to rob anywhere
what happened/ is the legal principle in R v Ali
- D involved with drug dealers
- told to rob somewhere or die
-dismissed as he knew the nature of the gang when he joined
give a case regarding ‘unavoidability’ for duress by threat
R v Gill; no duress if D had a ‘safe avenue of escape’ not taken at one point (as he is expected to take evasive action if possible)
what happebed/ is the legal principle in R v Gill
-no duress if D had a ‘safe avenue of escape’ not taken at one point (as he is expected to take evasive action if possible)
give 3 cases/ legal principles related to ‘immediacy’ for threats by duress
-threat of death/serious injury must be objectively immediate/ almost immediate (R v Hasan)
-so D couldnt be reasonably expected to make evasive action
-R v Hurst; not immediate (effects of child abuse)
-R v Flatt; had time to contact authorities
give 2 cases that relate to voluntary exposure to death by threats
-R v Sharp ( similar to Hasan)
-R v Hasan
what are the similar/same legal elements for duress by circumstance (and by threat)
-no duress for murder (R v Howe)
-no duress if voluntarily exposed himself to threatening circs (R v Sharp, R v Hasan)
-threat(ening circs) must emenate from source extraneous to D (R v Rodger; R v Rose)
-no defence if D didnt commit specific crime D told them to
give 2 case examples of duress by circumstances
-R v Willer; duress by circs found when D recklessly drove to escape a violent crowd
-R v Martin; wife said shed kill herself if D, who was unlicensed) didnt drive her son to work; appeal allowed
what happened/ is the legal principle in R v Willer
- duress by circs found when D recklessly drove to escape a violent crowd
what happened/ is the legal principle in R v Martin
-wife said shed kill herself if D, who was unlicensed) didnt drive her son to work
-appeal allowed
what crimes is the defence of duress by circumstances available for
-all crimes except murder, attempted murder and assisting murder (as an accomplice)
what case explains why duress by circumstance is not available for attempted murder
-R v Gotts; it would be anomalous to allow the defence for attempted murder (which has the MR of intent to kill) when murder can be established with a lower level MR (intent to cause GBH)
what happened/ is the legal principle in R v Gotts
-duress by circs is unavailable for attempted murder because it would be anomalous to allow the defence for attempted murder (which has the MR of intent to kill) when murder can be established with a lower level MR (intent to cause GBH)
