Duress

Question 1

What is duress based on?

Answer 1

Duress is a defence based on the fact that the defendant has been effectively forced to commit the crime.

The defendant has committed the offence because he or she has been threatened with death or serious injury.

Question 2

What is duress based on?

Answer 2

Duress is a defence based on the fact that the defendant has been effectively forced to commit the crime.

The defendant has committed the offence because he or she has been threatened with death or serious injury.

Question 3

Duress can be used as a defence to all crimes except?

Give case law?

Answer 3

Except murder, attempted murder and, possibly, treason.
R v Howe [1987]
R v Gotts [1992]

Question 4

What are the different defences under duress?

Answer 4

Duress by Threats;
Duress of Circumstances.

Question 5

What does the threat have to be about?

Answer 5

The threat has to be of death or serious injury.

Question 6

What must the threat do?

Answer 6

It must cause the defendant’s will to be so overborne by the threats that they commit an act which they would not otherwise do so.

Question 7

What must the threat of violence be directed at?

Answer 7

The threat of violence must be directed to the defendant, or immediate family, by another person who demands that the defendant commit a specific crime or else they will be killed or suffer serious injury.

Question 8

Do lesser threats count?

Answer 8

Lesser threats do not provide a defence. For example, a threat to disclose a previous conviction is not sufficient for duress.

Question 9

When can lesser threats ‘count’?

Give case law.

Answer 9

If, however, that threat is then followed by other serious threats, then it can be used as part of a cumulative threat towards the defendant.

R v Valderrama-Vega [1985]

Question 10

Explain R v Valderrama-Vega [1985]

Answer 10

The Court of Appeal quashed his conviction as they considered that the jury was entitled to look at the cumulative effects of all the threats. If there had not been a threat of death, then the other threats in this case would not be enough on which to base a defence of duress. But, as there had been a threat of death, the jury was entitled to consider the whole of the threats.

Question 11

What did R v Martin say on who the threats must be directed at?

Answer 11

There has been no decision on whether a threat to a complete stranger would be enough to give a defence of duress, but it is possible that this would be allowed as the draft Criminal Code proposed that this should be the rule.

Question 12

Give a case for duress of other people.

Answer 12

R v Conway- The Court of Appeal quashed his conviction on the basis that duress was available if the defendant felt that there was a threat of death or serious violence. Whilst the court did not discuss the possibility of threat to the passenger, it could be implied under the circumstances.

Question 13

What are the subjective and objective tests?

Answer 13

Was the defendant compelled to act as they did because they reasonably believed they had a good cause to fear death or serious injury?

If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way?

Question 14

What parts of the test need to be proven?
What case laid the tests down?

Answer 14

Both must be proven to succeed. The tests were laid down by the Court of Appeal in the case of R v Graham [1982].

Question 15

Give a case for the consumption of drink and drugs and the fact voluntary is not taken into account. Also, for the tests.

Answer 15

R v Graham [1982]

Question 16

What does R v Martin (DP) say about the first part of the test?

Answer 16

Duress and self-defence should be treated the same way in regard to belief of circumstances.
If the defendant reasonably believed that his or another’s safety was at risk the first element of the test would be satisfied.

Question 17

What does R v Hasan say about the first part of the test?

Answer 17

– Belief in the threat must be genuine and reasonable.

Question 18

What are the R v Bowen (1996) - Certain characteristics can be taken into consideration when deciding?

Answer 18

Age – Young and old are more susceptible to threats

Pregnancy – more likely to fear for the safety of unborn child

Serious physical disability – more difficult for the defendant to protect themselves

Recognised mental illness/psychiatric disorder – any disorder that would make someone more susceptible to threats, e.g. post-traumatic stress disorder.

Gender

Question 19

Defence only available if there is no safe avenue of escape

Answer 19

R v Gill (1963)

Question 20

If there is police protection is it possible for the D to rely on duress?

Answer 20

It has been said no.

Question 21

What did R v Hudson and Taylor say?

Answer 21

Held: The appeal was allowed and the convictions were quashed.

The threat itself doesn’t have to be carried out immediately.

Question 22

Must the threat be imminent? If not what must it be?

Answer 22

No,The threat must be effective at the moment the crime is committed – i.e. threat in place.
The threat itself does not need to be carried out immediately – Hudson and Taylor (1971)

Question 23

Imminence of Threat- what is the further criteria to consider under Abdul-Hussain (1999)?

Answer 23

There must be an imminent peril of death or serious injury to the defendant or those who are under his responsibility.

The peril must operate on the defendant’s mind at the time of committing the offence (matter for the jury to decide).

Execution of the threat need not be immediate.

Question 24

What was held in R v Abdul-Hussain?

Answer 24

Held: Appeal allowed. The convictions were quashed. The execution of the threat need not be immediate. Imminent peril of death or serious injury is an essential element of both types of duress. The defence of duress is available to those who hijack an aircraft, although in such cases the terror induced in innocent passengers will raise issues of proportionality for determination.

Question 25

The defendant can only use the defence of duress by threat if the threats are made in order to make the defendant commit a specific offence.

Case law and what does this only apply to?

Answer 25

R v Cole (1994)

Applies only to duress by threats, not duress of circumstances

Question 26

If it is self-induced duress is the defence available?

Answer 26

No!

Question 27

How can the D bring on the duress by their own actions?

Give relevant case law.

Answer 27

The defendant joins a criminal gang which he knows are likely to use violence.

The defendant puts himself into a position where he knows that he is likely to be subjected to threats of violence or actual violence, e.g. indebted to a drug dealer Heath (2000).

Question 28

If the D did not foresee the use of threat and where the reasonable man would not have foreseen the use of threat will the defence be available? Give case law.

Answer 28

Maybe. Hassan (2005)

Question 29

Defendant may be forced to act because of surrounding circumstances.

Answer 29

R v Willer (1986)

Question 30

What happened in R v Willer?

Answer 30

The COA quashed the conviction stating the jury should be directed as to whether or not the ‘compulsion to commit the act was under duress.’

It is sufficient for the defendant to show that they acted as they did because they reasonably perceived a threat of serious physical injury or death.

They are not required to prove that the threat was an actual or real threat.

Question 31

Even though R v Willer is there what will the jury be directed towards? Give case law for the test.

Answer 31

N.B. The jury will be directed to the two-stage test in Graham (1982).