defences - necessity defences - duress template - topic 17

Question 1

Duress is a…….

Answer 1

potential defence available to D. If successful it means D will be acquitted

Question 2

D must satisfy…….

Answer 2

2 part test established in R v Graham.
The first part is subjective and considers whether D was forced to commit the offence because he reasonably believed that otherwise death or serious injury would follow.
Case law has established that neither threats of financial ruin nor threats to reveal sexuality, R v Valderrama - Vaga are sufficient. However threats to cut someone up, R v Hudson and Taylor would satisfy the test
APPLICATION

Question 3

The second part of the Graham test………

Answer 3

is objective and considers whether a sober person of reasonable firmness sharing Ds characteristics would have reacted to the situation the same way as D.
Sober means that the effect of drink or drugs on Ds ability to resist the threats can’t be considered, R v Flatt.
Reasonable firmness is objective. In R v Bowen it was accepted that the following characteristics could be relevant - age, pregnancy, serious physical disability, recognised mental illness or gender.
However in the same case it was decided that having a low IQ was not a relevant characteristic that could be taken into account.
APPLICATION

Question 4

The threat must be…..

Answer 4

unavoidable and imminent: if D could take evasive action the defence isn’t available.
Threats relating to stealing a lorry in a weeks time, R v Gill are not imminent.
D must reasonably expect retribution to happen immediately or almost immediately, R v Hasan.
APPLICATION

Question 5

the threat must specifically……

Answer 5

set out the required conduct of D.
In R v Home the threat to ‘sort out’ a defendant was too vague even though D was specifically told to commit fraud.
In R v Cole a threat of serious injury was made but no specific instruction about what to do was given.
D who makes an honest and reasonable mistake regarding the threat can use duress as a defence, R v Hasan.
APPLICATION

Question 6

If duress is self induced………..

Answer 6

because D is a member of a violent gang and he should reasonably have foreseen the risk of compulsion by threats of violence, the defence isn’t available, R v Hasan.
APPLICATION

Question 7

In conclusion

Answer 7

the defence of duress is/ isn’t available to….. so he would/ wouldn’t be guilty

Question 8

Duress of circumstance

Answer 8

• operates in the same way as duress by threats. R v Martin confirmed the two part test:
• Was D compelled to act as he did because he reasonably believed he has good cause to fear serious injury or death?
  APPLICATION
• If so, would a sober person of reasonable firmness sharing the characteristics of the accused have responded in the same way?
  APPLICATION