Duress

Question 1

What type of defence is duress?

Answer 1

Full defence, necessity, common law

Question 2

What tests have to be satisfied?

Answer 2

1. Threat must be to cause death or serious injury
2. Directed against defendant/immediate family/someone close
3. Whether D acted reasonably in light of the threat will be judged objectively
4. Threat must relate to crime committed
5. No evasive action was available
6. D did not leave themselves open to the threat

Question 3

So terrified that he ceases to be…

Answer 3

“An independent actor”

Question 4

Case to say only death/serious injury is enough

Answer 4

Valderrama-Vega. Homosexuality on its own was not enough of a threat, but could be considered ALONGSIDE death threat

Question 5

Why can’t defence be used for murder/attempted murder/manslaughter

Answer 5

Lord Hailsham - reasonable man should be “capable of heroism if asked to take an innocent life rather than sacrifice own”
Criticised in Wilson due to 13 year old defendant

Question 6

Against whom can a threat be made for duress?

Answer 6

Defendant
Immediate family
Someone close
Someone who’s safety D regards themselves as responsible for

Question 7

Test for reasonableness in duress

Answer 7

Graham
1. Reasonably and genuinely believed they had genuine reason to fear death or serious injury
2. Would a sober person of reasonable firmness, sharing characteristics of the accused, react in the same way?

Question 8

What characteristics can be considered for duress

Answer 8

Bowen - age, pregnancy, gender, serious physical disability, recognised mental illness or psychiatric disorder
Bowen - Not low IQ
Graham - not voluntary intoxication

Question 9

Case for threat relating directly to crime

Answer 9

Cole - must be specific connection

Question 10

Cases relating to evasive action available

Answer 10

Gill - could have called police
Hudson and Taylor - court accepts police protection is not fool-proof

Question 11

Judgements on D leaving self open to the threat

Answer 11

Hassan - joining a criminal organisation or gang is voluntarily laying self open to threat
Ali - only in the case where d “foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence”

Question 12

Examples of duress of circumstance

Answer 12

Willer - drove on pavement to avoid gang . Jury allowed to consider whether he was “under that form of compulsion”
Conway - defence available if D was objectively acting to avoid threat of death / serious injury
Martin - Graham test applies

Question 13

Is duress of circumstances available for murder / attempted murder / manslaughter?

Answer 13

No - Pomell

Question 14

Does D have to prove threat was real for duress of circumstance?

Answer 14

Cairns - no but reasonably perceived it

Question 15

Abdul Hussain 4-part test for duress of circumstances

Answer 15

1. Immediate peril of death or serious injury to defendant or for whom they have responsibility
2. Peril must operate in their mind at the time of act, overbearing their will
3. Execution of threat need not be immediate, but imminent
4. No avenue of escape