Duress Flashcards
Type of defence
Duress is a full defence for most crimes and the burden of proof is on the prosecution to disprove that the defendant was under duress. Duress cannot be used for murder (Howe) or attempted murder (Gotts)
Subjective test
Did the defendant believe that he or others would be killed or physically injured if he didn’t comply with the threats
First part of Graham test
requires the threat to be serious, unavoidable and imminent, plus duress cannot be self-induced
Serious
there must be serious threats, those of which cause death or personal injury (Valderrama-Vega)
Avoid
the D must not be able to avoid the threat, meaning that he cannot use the defence if he has time to inform the police or to avoid the threat he had been threatened into committing (Hasan)
Specific offence
the defendant can only use the defence if the threats are in order to make him commit a specific offence (R v Cole)
Self induced
duress will not be available if the defendant has voluntarily associated with criminals, as he should have reasonable foreseen that he might be forced to commit crimes by threats or violence
Objective test
would a sober person of reasonable firmness of the same characteristics as the defendant, have reacted in the same or similar way
Characteristics
age, gender, pregnancy, disability or mental illness