duress Flashcards
what type of defence is it
necessity
when is duress available
what threatened w?
‘if D has been forced to commit the crime bc he has been threatened with death/ serious injury’
what are the 2 types of duress
- direct threat by another (duress of threats)
- through external circumstances (duress of circumstances)
what crimes are duress not available for
murder
attempted murder
Howe 1987
hint - D involved in 2 crimes, strangling
D involved in 2 crimes ,
1- the torturing of a man, where someone else strangled V
2- as above but D did the strangling
ONLY RELY ON DURESS FOR 1ST CRIME
POL- duress not available for murder
Gotts 1992
hint- parents
D had split parents, threatened by his da with violence unless he stabbed his mum, D attacked his mum but didn’t kill her
NOT RELY ON DURESS
POL- not a defence for attempted murder
what is the 2 part test for duress by threats
what case established this test
1- was D compelled to act as he did bc he reasonably feared death or serious physical injury?
2- If yes, would a sober RM sharing Ds characteristics have done the same?
graham 1982
Graham 1982
hint- 3 ppl living together
D was gay, lived with his wife and another gay man. this man bullied D and was violent, they had been drinking and put a flex round wifes neck. D was told to pull other end and wife died
COULD CLAIM DURESS
POL- feared serious injury, man was violent
explain part 1 of the tests standards
(act fear death/ serious injury)
hint- who are the threats to? what must the threats be?
-threat must be reasonably held and genuine
-the threat must be immediately or immently
- threats don’t have to be to D himself, can be to fam/friend, D just have to believe he’s responsible for them
-can be numerous threats but must risk death/ serious injury
when can D not use the defence of duress, even if he has been threatened
if he has a clear avenue of escape, the threat must be immediate
Valderrama - vega 1985
hint- cocaine
POL- important
D illegally imported cocaine, claimed due to death threats by mafia organisation and threat to disclose his homosexuality & financial issues
COULD RELY
POL- if were no death threats the other threats wouldn’t be enough
Hasan 2005
hint- burgle
D tried to burgle a house after being threatened by drug dealer
COULDNT RELY
POL- threat must be immediately, D had a clear avenue of escape
Conaway
hint- car
passenger in Ds car had been shot at by 2 men before. D saw 2 men running towards car and drove off, actually police
COULD RELY
POL- D was acting to avoid death/ serious injury
explain part 2 of the test for duress standards
(RM same characteristics & situation)
hint- person of… and what characteristics are considered?
- would person of reasonable firmness responded same way
- consider:
age- if young, more likely
sex- women less courage say no
physical disability- struggle defend
pregnancy- protect baby
mentally ill- more susceptible to threats
what are the 3 other factors considered?
- if there’s a safe avenue of escape, if is can’t rely
-if the threats were for D to commit a specific offence
-self induced duress, D brought on himself can’t rely
Cole
hint- threat to commit a specific offence
D was threatened to pay money. D didn’t have money so carried out 2 robberies
COULDNT RELY
POL- D was not placed under duress to steal from others, only to pay
sharp
hint- self induced
D joined a gang that carried out robberies, he claimed he wanted to withdraw from robberies
COULDNT RELY
POL- voluntarily joined a gang was aware used violence snd robberies
Gill
hint- safe avenue of escape
D was threatened to steal a lorry, had time to escape and raise alarm
COULDNT RELY
POL- duress cannot be used if there’s a clear avenue of escape
shepherd
hint- shoplifters
D joined gang of shoplifters, wanted to stop but was threatened with violence
COULD RELY
POL- had no knowledge gang likely to use violence
what is duress of circumstances
D is forced to act due to the surrounding circumstances, believes if he doesn’t he and those around him will suffer death/ serious injury
Cairns
hint- bonnet
POL- important
D driving and V jumped on his bonnet, D thought V being hostile to him so braked, V fell suffering GBH
COULD RELY
POL- if D reasonably believes could be a threat can rely even if there isn’t one
