duress Flashcards
what is duress
Duress is a defense where D states they only committed the crime because they were threatened with serious violence
what crimes cant duress be used for
murder
attempted murder
accomplice to murder
what are the 2 types of duresses
duress by threat
duress by circumstances
what is duress by threat
D is threatened with violence to take action by another person
defendant commits a crime because they were forced by threats of death or serious injury.
what is duress by circumstance
D is required to take action due to the circumstances they are in- This is where D may be forced to act due to their circumstances.
There may not be a specific threat made, but D is in a situation where they are forced to break the law in order to escape.
Threat of death or serious injury cases (4)
Shayler 2001
Baker and Wilkins 1997
Valderrama-Vega 1985
R v Ashley 2012
Shayler 2001
had to be a specific threat
Baker and Wilkins 1997
Threats of psychological injury – however serious – are not sufficient. No defense.
Valderrama-Vega 1985
threats regarding debt/sexuality would not have been enough on their own, but with the threat of death they could be sufficient.
R v Ashley 2012
A threat to rape is sufficient
murder case
r v howe
what does this case say
The ordinary man should be capable of heroism if he is asked to take an innocent life rather than sacrifice his own
accomplice to murder case
r v wilson
attempted murder case
r v gotts
what does this case say (r v wilson)
even if D is young, weak or vulnerable
Threat to D or someone close to D case (1)
r v cohn
D owed money and was threatened with violence unless he paid back. He robbed two building societies to get the money
what does nexus mean
connection between threat and crime
what is the outcome rule of this case (r v cohn)
Duress not allowed as there was no nexus (connection) between the threat and the crime. D was not told specifically to rob the money, just to pay back his debt.
what case brought around the graham test and which case approved it
r v graham
r v howe approved it
what does the graham test say
The defence is not available just because D reacted to a threat; the threat must be one that the ordinary man would have also not resisted.
what does the graham test consist of
- Was D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death?
- If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way
Was D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death TYPE OF TEST
SUBJECTIVE:
It asks what the D themselves thought
case example of this and what does this state
R v Martin (DP) 2001:
The jury can take into account D’s mental condition (schizoid-affective state) in deciding if D thought the threat was real
- If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way TYPE OF TEST
OBJECTIVE:
It asks what a reasonable person would do
case example of this
R v Bowen 1996:
Decided what counts as “shared characteristics” – age, pregnancy, serious physical disability, recognized mental illness or psychiatric condition, sex.
The threat must be imminent case
R v Abdul-Hussain 1999
which court stated rules due to this case
court of appeal
what were the 3 rules they stated
There must be imminent peril (serious and immediate danger) of death or serious injury to the D or those for whom D has responsibility
The jury must agree that this peril was in D’s mind at the time of the offence so as to overbear D’s will
Execution of the threat need not be immediate
Must be no possibility of escape cases (2)
R v Gill 1963
R v Hudson and Taylor 1971
r v gill
He could not use the defense as he had a chance to escape and he did not.
D was threatened to steal a lorry, but was left alone for a period of time when he could have called the police or escaped.
what is the last thing duress cant be used as a defense for
where D has voluntarily joined a gang in which they are aware violence is used, and is then threatened with violence in order to commit a crime.
what case backs this
R v Hasan 2005
r v hassan
If D voluntarily associated with others who are engaged in criminal activity,
and he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence,
then the defense will not be available
what case allowed duress of circumstance to be a valid
r v pommel (check ppt)
Court stated the defence requires similar test used for Duress of Threats – from the case of R v Graham requiring that:
1.The defendant must have areasonable beliefin the circumstances;
2.This belief must have lead the defendant to haveagood cause to feardeath or serious injury would result if he did not comply; and
3.Asober person of reasonable firmness, sharing the characteristics of the defendant, might have acted as the defendant did.
r v pommel
Possession of unloaded shotgun – D claimed to have taken it off someone the night before to stop him ‘doing some damage’ with it and claimed he was going to take it to the police later on.
Held – defense should be put to jury, applies to all offences except for murder and attempted murder. D’s conviction quashed.
what are the 6 requirements
1) the threat must be of death of serious injury
2) threat must be against d pr someone close to d
3) the crime to be committed must be specific
4)the graham test needs to be passed
5) threat must be imminent
6) there must be no possibility of escaping the threat
The threat must be aimed towards D personally or someone close to D case
r v martin (dp)
