Duress Flashcards
What is the definition of duress?
Where D has committed the offence because he has been threatened with death or serious injury. D has an excuse and will not be guilty as he has effectively been forced to commit the offence.
What is duress by threats?
D is told to commit the crime ‘or else’.
What is duress by circumstances?
D is forced to commit a crime because he reasonably believes there is a risk of death or serious injury arising from the circumstances in which he finds himself. D is not told to commit the crime ‘or else’.
What 2 things are crucial?
The immediacy of the threat and the inability to avoid it.
What are the elements of duress according to HASAN?
- there must be a threat of death or serious injury
- the threat must be against D or his immediate family or someone close to him or someone for whom D would reasonably regard himself as responsible
- D must reasonably believe he had a good cause to fear death or serious injury and his response must be one which might be expected of a sober person of reasonable firmness
- D was told to do something that would be criminal
- there must be no reasonable opportunity to escape the threat
- D cannot rely on threats to which he has voluntarily laid himself open
What does BAKER AND WILKINS state?
It is probable that a threat to cause serious psychiatric injury could amount to duress.
Does there have to be an actual risk of death or serious injury?
No, it is sufficient that D reasonably believes that there is a threat of death or serious injury.
What threats do not suffice?
Threats of blackmail and threats to damage/destroy property.
What does HASAN state about who the threat may be against?
Persons for whom D would reasonably regard himself as responsible would cover those who could be injured by a bomb.
What did WRIGHT state?
A threat against Ds boyfriend sufficed as a threat against Ds immediate family or someone close to him or someone for whom D would reasonably regard himself as responsible.
What does GRAHAM state?
It must be that a sober person of reasonable firmness sharing certain characteristics of D which affect Ds ability to resist the threat would commit the offence.
What does BOWEN state?
Ds age, sex, pregnancy, serious physical disability and a recognised medical condition could be relevant to decide if a sober person of reasonable firmness would commit the offence.
What characteristics are considered irrelevant?
A low IQ, emotional instability, vulnerability to pressure or being unusually pliable.
What does COLE state?
Someone has basically said commit this specific crime ‘or else’.
What does VALDERRAMA VEGA state?
The threat of death or serious injury need not be the only motive for Ds conduct.
What does HASAN state about when the threat is carried out?
D must reasonably believe that the threat could be carried out immediately or almost immediately
What does GILL state?
The defence will not be available where D had a reasonable opportunity to contact the police or escape.
When is D expected to stop committing the offence?
When the threat is withdrawn or becomes ineffective, D must stop committing the crime as soon as he reasonably can.
What does HASAN state about voluntarily laying yourself open to threats?
If D voluntarily associates with criminals, he will normally not be able to use the defence for any crime he commits due to threats of violence by those criminals- unless he did not foresee that they might try to make him commit an offence through threats and a reasonable person would not have foreseen this either.
What does POMMEL show?
The defence of duress was extended beyond driving offenses only since the mid 1980s.
