duress Flashcards
what is the definition of duress
D has been forced to commit a crime because he has been threatened with death or serious injury
is duress available for murder
duress is not available for murder, participation in murder or attempted murder
r v gotts
duress is not a defence for attempted murder
r v howe
duress is not a defence for murder
r v graham
created 2 stage test
- subjective test - d acted because he reasonably believed he would face death or serious personal injury
- objective test - would a sober person of reasonable firmness with the same characteristics as d respond in the same way
Valderrama-vega
cumulative threats can be considered where there are also threats of death or serious injury
is psychiatric harm enough
psychiatric harm is not enough it may become mitigating factors, which may reduce the sentence
r v Cole
there must be a nexus between the threat and crime
r v gill
if d has an opportunity to inform the police, the defence of duress will fall
r v abdul-hussain
the threat need not be immediate, but it had to imminent in the sense that it was ‘hanging over them’
r v hasan
threats can also relate to a family member or someone whose safety d is responsible for
r v Hudson and taylor
the fear of death or serious harm must be immediate
r v Bowen
a low iq could not be taken into account when deciding whether a reasonable person would have acted the same
r v sharp
the defence was not available as he had agreed to take part in the first place
duress by threat (necessary)
3 points
- the act is needed to avoid inevitable and irreparable evil
- no more should be done than is reasonably necessary for the purpose to be achieved
- the evil inflicted must not be disproportionate to the evil avoided
r v quayle
the courts did not allow the defence of necessity as the misuse of drugs 1971 does not allow for such
r v Martin
he was alllowed the defence as the circumstances suggested that she would seriously harm herself unless they committed the crime
Conway
coa quashed the conviction and said duress of circumstances could be allowed if the d acted in order to avoid threat of death or serious injury
