duress

Question 1

what are the two forms of duress?

Answer 1

• duress by threats
• duress by circumstances

Question 2

what type of defence is duress?

Answer 2

general (full) defence

Question 3

who is the burden of proof on for duress?

Answer 3

prosecution

Question 4

what is duress?

Answer 4

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

Question 5

what must the threat be about for duress?

Answer 5

The threat MUST be death/serious injury (GBH)

It was held in Macgrowther’s Case (1746) that a threat to burn buildings was not enough to be duress

Macgrowther’s Case

Question 6

Macgrowther’s Case

Answer 6

threat to burn buildings was not enough to be duress

Question 7

who must be threatened for duress?

Answer 7

R v Wright – includes anyone you feel responsible for

Question 8

R v Wright

Answer 8

boyfriend was threatened unless she smuggled drugs, she did so and was convicted.

LP - threats can be against anyone you feel responsible for

legal point - threats can be against anyone you feel responsible for

Question 9

does duress include a threat of serious psychological injury?

Answer 9

R v Baker & Wilkins – CoA refused to extend the defence to include this

Question 10

does it have to be the only threat?

Answer 10

No, provided there are serious threats (death/serious injury), the cumulative effect of the threats can be considered

Valderrama-Vega (1985)

Question 11

Valderrama-Vega (1985)

Answer 11

D illegally imported cocaine. He claimed he did it because of death threats made by a mafia-type organisation and also because of threats to disclose his homosexuality plus financial pressures.

LP – jury was entitled to look at the cumulative effects of all the threats

Question 12

must there be a link between the threat
and the crime committed? (duress)

Answer 12

There must be a sufficient nexus between the threats and the offence
committed

R v Cole (1994)

Question 13

R v Cole (1994)

Answer 13

Moneylenders pressured D for money. Threatened his GF and child. He
robbed two building societies. Charged with robbery. Pleaded duress but was unavailable because duressors had not told him to rob the building societies. He had chosen that means of obtaining the money.

There was an insufficient nexus between the threats and the offence.

Question 14

what if there is an opportunity to escape? (duress)

Answer 14

if D had an opportunity to escape, they cannot use the defence of duress

Made clear in R v Gill (1963)

Question 15

R v Gill (1963)

Answer 15

• D/family threatened unless he stole a lorry
• Left alone in yard and could have escaped but didn’t
• LP - could not use duress - if D had an opportunity to escape, they cannot use the defence of duress

Question 16

what if D believed police protection was unreliable or not sufficient? (duress)

Answer 16

R v Hasan (2005) said D MUST seek police protection if an opportunity arises.

Question 17

R v Hasan

(police protection)

Answer 17

D involved with a violent drug dealer who ordered D to steal money
from a house safe. D claimed he and family threatened with
death/serious injury. D broke into house but couldn’t open the safe – said D MUST seek police protection if an opportunity arises.

Question 18

how imminent does the threat have to be?

Answer 18

R v Hasan (2005) – preferred the threat to be “immediate or almost immediate”

Question 19

R v Hasan (2005) - imminent or immediate

Answer 19

Law Lords rejected the idea of “immediate or imminent” – they preferred “immediate or almost immediate” – lower courts obliged to follow this now

Question 20

what if the duress is self-induced?