DoT Flashcards
Why is DoT more circumscribed than SD
because the force is directed at an aggressor In SD, while in DoT V is an innocent 3rd party, and D makes an, albeit it coerced, decision to do wrong
What are the concerns with the defence
concern that the defence is capable of being manipulated by criminals especially gang memebrs, Lord Bingham in Hasan argued that where policy choices had to be made there will be an inclination towards the tightening father than relaxing of the defence
Why has gangs raised concerns?
The concerns is that criminal organisations the use of threats are common an duress will be easily raised and be difficult to disprove which has resulted in a narrow interpretation of the defence. However, is the defence overly restrictive and unable to give those deserving a defence? Lippke
The previous law was more flexible
D had more leeway in demonstrating prior fault by vol association If he had reasonable grounds to not foresee the threat and the demand which followed- Shepeard
In which case can the tightening be seen
However, in Hasan confirms that DoT will be excluded where D has vol association with the dresser in circumstances where a reasonable person would have foreseen the risk of future coercion. Ali confirms that foresight need not be specific in nature.
What does J.C smith argue
While it is one thing to be aware that if you do not pay your debts you are likely to be beat up, it is another to be aware that you will be require under threat to commit some other unspecified crime.
Who prefers a subjective test
Hale
What is the gang argument driven by
policy, rather than fairness. D may satisfy the Graham test but be automatically excluded
What did Smith and Hogan say needed particular attention in gang cases
A balancing act must be performed where D has a genuine opportunity ti leave and those for who leaving would not be safe or realistic or where their position in a gang reflects no prior fault e.g. children born into gangs, or trafficked women, although there is now a specific defence in the Modern Slavery Act for this.
What is the Graham test
Two part test confirmed in Howe. D did D fear death or SI? And would a reasonable person fear it?
Why is the objective element difficult
Difficult for D to access the defence. in such circumstances people may react differently in the moment, also can argue that a reasonable person may not actually know how they’d react until they are in the situation
However, the test allows for some characetrics
But no all e.g. Bowen low IQ cannot be taken into account. LC proposed that any characteristic that will effect the gravity of the threat should be considered
What does Smith KM argue
That if the defence is excusatory and a concession to human frailty then taking into account D;s temperament would eb a proper expectation?
Does a person of reasonable firmness have any role left to play?
DoT is already drawn very narrowly in the fact there must be threat of death or SI and the belief that the threat will be carried out must be reasonable, therefore does an assessment of a person of reasonable firmness actually add anything to the test>
Why should we not include any more characteristics
creates inherent difficulty for the jury to weigh up D’s moral resilience
