Duress Flashcards
What is the locus classicus for duress?
AG v Whelan Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resitance should be accepted as justification for acts which would otherwise be criminal. The exception is murder, even the strongest duress will not justify taking a life.
What level of threat gives rise to the defence of duress?
DPP v Gleeson duress can be raised if there was in fact no threat but the accused believed there was. The test of compulsion is subjective and the ordinary standard of resistance will change based on the age, sex, and other fixed characteristics of the accused.
The accused’s response must be proportionate.
DPP v Martin A mentally ill mother told her husband she would kill herself if her son, who was running late, lost his job. The extreme and pressing nature of the threat justified the husband driving without his licence.
When must they expect the threat to be executed for duress?
R v Hasan The threat must be such that the accused reasonably expects it to be executed immeidately upon his failure to comply. (Perjury, execution upon leaving the court was sufficient, Prof. Williams said weak.)
R v Hudson The defence will fail if there was an opportunity reaosnably open to them to counteract a threat. Regard will be had to any risks involved in the course of action and if state protection would be ineffective.
What is the law as to ‘self induced duress’?
R v Hasan The HoL held the defence cannot be raised if a result of his voluntary association with others he forsesaw the risk of being subjected to any compulsion by threats of violence.
R v Fitzpatrick An IRA member was unsuccessful in raising the defence as it was held to be self induced.
What is the law in relation to necessity (duress of circumstances)?
R v Dudley Stephens - two shipwrecked men ate a third companion, who had fallen into a coma. They were not allowed to advance a dfence of necessity as it would create a dangerous precedence that the strong could always choose to sacrifice the weak. Necessity cannot be advanced for murder.
Re A (Children) (Conjoined Twins: Surgical Separation) Similarly, in a case concerning the separation of conjoined twins who were guaranteed to die, duress allowed for doctors to intervene (in contradiction of the parents’ wishes), to carry out a surgical procedure that would save one of the twins. In brief, the act must be needed to avoid inevitable and irreparable evil, no more is done than was necessary for the purpose, the evil conducted under duress ought to be greater than the evil being avoided. This case also shows there is no requirement of immediacy.
