Defences - Duress Flashcards
What is the defence of duress?
Where a person is forced to commit a crime because they were under threat of death or personal injury.
1975 - Defence available for murder. DPP for NI v Lynch
The defendant was ordered to drive a car by members of the IRA. His passengers killed a police officer and he was charged with murder
1986 - not available for murder. R v Howe & Others
Howe and 2 others were ordered to kill a man, if they didn’t then the same would happen to them. The defence of duress was not allowed.
1992 - What crimes is it not available for? R v Gotts
Available to all crimes except murder
- 16 year old ordered to kill his mother by his father.
Subjective test
(R v Graham)
Did the defendant act in the way that he did otherwise death or personal injury would result in the defendant.
- defendant was under the influence of Valium when his gay over suggested they murder his wife
Things to consider for the subjective test: Are their threats sufficient?
R v Valderrama - Vega
- exposing somebody’s sexuality wasn’t sufficient enough of a threat
Are the threats unavoidable?
R v Hudson and Taylor -
although the threat was not immediate, it was hanging over them and could have been carried out following their offence
The defence is not available for those who have voluntarily self-induced stress
R v Hasan
- defendant voluntarily associated with criminal gangs
The threat must be operative at the time of committing the crime
R v Abdul - Hussain
: it need not be immediate though, just imminent enough to be hanging over them
Objective test - sober person
Would a sober person of reasonable firmness, sharing the defendants characteristics, have reacted to that situation by behaving the way the defendant did?
Personal characteristics can only be regarded where they are relevant to the defendant’s interpretation of the threat
Stipulated what personal characteristics could include
- age and sex, pregnancy, any disability and recognised illness
R v Bowen
the defendants low IQ wasn’t taken into the personal characteristics of duress
What is duress by circumstances
The circumstances are such that death or personal injury will ensue unless a crime is committed
When is duress by circumstance used ?
Usually relate to cases associated with road traffic offences, when someone is forced to drive illegally due to circumstances
R v Willer
Duress was used - he was being threatened by a gang and committed the offence whilst trying to evade them.
R v Conway
Duress was used - the defendant believed he and his passenger to be in danger and committed the offence in an attempt to get away
R v Pommell
The court ruled that the defence was available to all offences except murder, manslaughter and treason.
R v Cairns
The defendant injured a gang member after his car was surrounded by a group of youths
Evaluation of duress defence
- too narrow - punishes anyone associated with a criminal
- Used for murder - too harsh considering terrorist climate.
