Duress Flashcards
What is duress based on?
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.
What is duress based on?
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.
Duress can be used as a defence to all crimes except?
Give case law?
Except murder, attempted murder and, possibly, treason.
R v Howe [1987]
R v Gotts [1992]
What are the different defences under duress?
Duress by Threats;
Duress of Circumstances.
What does the threat have to be about?
The threat has to be of death or serious injury.
What must the threat do?
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.
What must the threat of violence be directed at?
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.
Do lesser threats count?
Lesser threats do not provide a defence. For example, a threat to disclose a previous conviction is not sufficient for duress.
When can lesser threats ‘count’?
Give case law.
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]
Explain R v Valderrama-Vega [1985]
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.
What did R v Martin say on who the threats must be directed at?
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.
Give a case for duress of other people.
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.
What are the subjective and objective tests?
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?
What parts of the test need to be proven?
What case laid the tests down?
Both must be proven to succeed. The tests were laid down by the Court of Appeal in the case of R v Graham [1982].
Give a case for the consumption of drink and drugs and the fact voluntary is not taken into account. Also, for the tests.
R v Graham [1982]
What does R v Martin (DP) say about the first part of the test?
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.
What does R v Hasan say about the first part of the test?
– Belief in the threat must be genuine and reasonable.
What are the R v Bowen (1996) - Certain characteristics can be taken into consideration when deciding?
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
Defence only available if there is no safe avenue of escape
R v Gill (1963)
If there is police protection is it possible for the D to rely on duress?
It has been said no.
What did R v Hudson and Taylor say?
Held: The appeal was allowed and the convictions were quashed.
The threat itself doesn’t have to be carried out immediately.
Must the threat be imminent? If not what must it be?
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)
Imminence of Threat- what is the further criteria to consider under Abdul-Hussain (1999)?
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.
What was held in R v Abdul-Hussain?
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.
