Duress Flashcards
Introduction?
Common law defence - Pressure giving rise to a complete defence when the victim acts under threats, the D is forced to commit a crime, it is a defence to all crimes except murder, manslaughter and possibly treason.
Criminal Enterprise?
Heath - limits to the defence of duress when the D is involved in criminal enterprise.
Safe avenue of escape?
Gill - does not allow duress if there is a safe avenue of escape.
Murder?
Howe - defence of duress is not available for murder, participation in murder to attempted murder.
Lord Hailsham - morals to allow the defence, D should show heroism and sacrifice own life rather than kill another.
Duress and Threat: Valderrama - Vega?
The threat that the victim is under must be of death or serious bodily harm, lesser threats do not provide a defence.
The threat of death of serious bodily harm can be part of other threats, but it must be there.
Duress and Threat: Wright?
The threat must be to the defendant or someone close to them.
e.g. family friend or passenger in a car.
Duress and Threat: Hudson and Taylor?
The threat must be immediate or almost immediate.
However, the threat can be hanging over the D when they commit the crime.
Duress and Threat: Cole?
There must be a nexus between the threat and the offence committed. The threat to make D commit a specific offence.
The threat must mention a specific crime.
Duress and the standard test? Graham
Graham - decided on the standard test. It is a jury decision whether the defence of duress will succeed and the test is in two parts.
Duress and the standard test? Test 1?
Did the D act because he reasonably feared serious death or injury - SUBJECTIVE.
Duress and the standard test? Test 2?
If so, would a sober person sharing the same characteristics of the D react in the same way? - OBJECTIVE.
Bowen - Lists the characteristics that can and cannot be taken into account of.
Can - Age, pregnancy, serious physical difficulty, mental illness, gender.
Cannot - Low IQ.
Necessity: Introduction?
D claims that his conduct was not harmful because of a choice of two evils the choice of avoiding the greater harm was justified.
There has been a reluctance from the courts to recognise the defence as a defence in its own right.
Necessity: Dudley v Stevens?
It is an example of the courts refusing to accept the defence of necessity, defence of necessity cannot be used for murder.
Necessity: Re A?
Courts recognising the defence when making an order in civil law.
Duress of Circumstances: Introduction?
Duress of Circumstances requires that the D must have acted in order to avoid a threat of imminent death or serious injury and with no reasonable opportunity for escaping.
