Duress Flashcards
General Defence
A common law judges decision
1.Duress can be used as a defence to all crimes except murder or attempted murder - Threats
2.Threats must be of serious injury or death or rape.Courts will consider cumulative effect of these types of threats.VALDERAMAVEGA
3.Threats can be to D or family friends or someone Ds responsible for CONWAY
4.Two part test Graham
A.Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death subjective test HASAN
B.would a sober reasonable person sharing same characteristics do the same Objective BOWEN
5
No Avenue to escape GILL
6
If police protection is available defence will fail exception = HUDSON V TAYLOR
7
Threat must be effective and operating on D when he commits the offence ABDUL HASSIN
8
Threats must be to commit a specific offence COLE
9
Self induced duress will fail SHARP HASAN
Duress by circumstances
First case to recognise duress by circumstances came in 1986 WILLER followed by CONWAY ,MARTIAN
Graham jury must consider two part test
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death Subjective HASAN
2.Would a sober reasonable person sharing same characteristics of the D responded same way Objective test BOWAN
Duress of circumstances is defence to all crimes EXCEPT murder and attempted murder and some forms treason POMMELL
sufficient for D to show he acted on reasonably perceived threat of serious physical injury or death Doesn’t have to prove threat was actual or real CARINS
Duress of necessity
Leading Case
DUDLEY V STEPHENS
Necessity may potentially be defence RE A C of A held the tests for duress of circumstances and or necessity were:
Act must be done on,y to prevent act of greater evil
The evil must be directed towards the D or a person for whom he was responsible
The act must be reasonable and proportionate to evil avoided
