Duress Flashcards
2 types of duress are:
By threat - direct threat by another.
Duress of circumstances - threat through external circumstances
By threat definition and case it was held in:
Whelan- threats of immediate death or serious personal violence so great as to overhear the ordinary powers of human resistance’
In which case where the 5 elements set out in and by whom?
R v Hasan, Lord Bingham 2005
What is element 1:
Specified crime - the threat must be accompanied by an order to commit a specified crime
R v Cole
What is element 2:
Immediate threat - not immediate but imminent
R v Hudson and Taylor
What is element 3:
Threat of death or serious injury - must be a threat of death/serious injury but can consider cumulative effect of threats.
R v Valderamma
What is element 4:
The threat of violence must be to D (R v Shayler), a family member (R v Martin) or a person in a car ( R v Conway)
What is element 5:
Threat must be so great to overhear the ordinary powers of human resistance - 2 stage test in graham subject and objective.
R v Bowen
DC - there must be sufficient nexus between the threat and the crime
R v Cole
DC - can be used when D is forced to commit a crime from threats of immediate death or serious injury
R v Willer
Confirmed new defence of duress of C
R v Conway
DC - Affirmed the defence and held that it was governed by the same rules as duress by threat and the test in Graham
R v Martin
It is available to all crimes except murder, attempted murder and those who assist murder
R v Pommell
DC - The circumstance are judged as the defendant believed them to be
R v Cairns
Limitations of duress
Not available for murder - abbot v the queen.
Should be for attempted murder - R v Gotts
Gang - R v Sharp
Terrorist organisation - R v Fitzpatrick
Indebted to Drug dealers - R v Ali
Could obtain police protection - R v Hasan
