Duress Flashcards
What is Duress?
Duress is a general defence used by a defendant who argues that they only committed a crime because they were forced to do so by threats or circumstances that left them no realistic choice
What is duress not available for and what case confirm this?
Murder — r v Howe
Attempted murder
Treason
Which case and who established 6 requirements for duress by threats?
Lord Bingham in R v Hasan
1. There must be a threat to cause death/serious injury
2. Threat must be made towards D, their immediate family or someone close to them
3. Whether the D acted reasonably will be judged objectively
4. The threats relate directly to the crime committed
5. There was no evasive action D could have taken
6. If D voluntarily lis themselves open to threats, defense of duress is not available
Explain the first element of duress & case?
The threat — must be of death/serious injury, lesser threats such as disclosure of a secret (solely) are insufficient
R v Valderrama-Vega
Explain the 2nd element of duress & case?
The threat must be made against:
D, their immediate family, someone close to them, or someone D would regard themselves responsible for
R v Wright - threat was made towards boyfriend
3rd element for duress - test for whether D acted reasonably & case?
R v Graham test
Was the D compelled to act or did she have good cause to fear serious harm (reasonably believe)
Would a sober person of reasonable firmness sharing the characteristics of the accused have responded the same way?
For the 3rd element, what characteristics could be relevant in deciding if D acted reasonably?
Bowen
Age — very young/old people could be more susceptible to threats
Pregnancy — additional fear for the unborn child
Serious physical disability — harder for D to defend themselves
Recognised illness/psychiatric disorder — PTSD, more susceptible to threats (does not include low IQ)
Gender - Coa thought women might have more moral colurafe then men
4th element of duress & case?
The threats must cause the D to commit the specific offence
R v Cole — must be a sufficient connection between the threats made and offence committed
5th element of duress & case?
Duress can only be used if D is put in a situation where they have no safe avenue of escape
R v gill — sufficient period of time between when the threats were made where he could have had the possibility of a ‘safe avenue of escape’
6th element of duress & case?
The defense of duress cannot be used if D has voluntarily laid themselves open to the threats
R V hasan — came into contact with a violent drug dealer so laid himself open to threats, defense failed
