Duress Flashcards
Definition
Defendant was forced to break law under an immediate and direct threat of bodily harm or death befalling themselves or someone else.
Effect of successful plea
Complete defence of not guilty
Who introduces the evidence
The defendant
Who has to prove the burden of proof?
The prosecution
What does the prosecution have to prove?
That the D was not acting under duress.
Who’s test is used in duress?
Graham test
Availability of duress
All offences except murder and attempted murder.
2 elements to prove from graham test
D impelled to commit crime because he feared death or serious physical injury.
sober person with same characteristics would have acted same way.
First element
Must be death or serious physical harm.
Gotts
Duress not available for attempted murder.
Singh
Adultery exposure not significant
Vega
Cumulative effects of all threats taken into account.
Second element
Must be directed at D, a person for whose safety they would reasonably regard themselves responsible.
A person for whose safety they would reasonably regard themselves responsible case
Hasan
Third element
Must be imminent
What does imminent mean
Threat should ‘hang over’ D at the time he commits the offence.
Hussain
Threat should of operate on mind of D.
Taylor
Threat neutralise the will of D at time of commiting offence.
Fourth element
Must not be self induced
What does self induced mean
Where D brings duress on himself through own actions.
Hasan
Defence failed because D induced by his association with criminal group.
What does it mean should D have resisted
A sober person of reasonable firmness sharing characteristics of D would have acted the same way.
Gotts
Threat must be one that ordinary man would not of restricted.
Bowen
Defence failed as IQ was irrelevant.
Characteristics that can be used
Age
Pregnancy
Recognised medical condition
Characteristics that cant be used
Homosexuality
Self induced characteristics
Being more vunerable
Martin
CA quashed conviction as suffered schizoid affective.
The defence of duress of circumstances meaning
Threat does not come from a person but the circumstances in which D finds him/herself.
Conway
Action must be reasonable and proportionate to the threat.
Martin
Threat sufficient for duress of circumstances
Pommel
To all crimes except murder or attempted murder.
Rodger and rose
Circumstances were internal not external so couldn’t use defence.
What’s the jury’s position in the court?
Jury decides whether the threat was sufficiently serious.
other elements that should be considered
The threats relate directly to the crime committed by D.
There was no evasive action the D could have taken.
Threats relate directly to the crime committed by D case
Cole
There was no evasive action the D could have taken case
Taylor
