Duress Flashcards
Duress
A defence based on the fact that the D had been forced to commit the crime by threats of death or serious injury. D doesn’t have MR because he doesn’t want to do it but may be so terrified that he is an ‘independent actor’.
Duress cannot be used for Murder and Attempted Murder:
- Howe: Ratio said no defence for Murder, ratio decendi said should also be banned for Attmpted Murder (Obiter not precedent.)
- Gotts: Followed Obiter and used it in Ratio, which stopped Attempted Murder cases using the defence of Duress.
2 Types of Duress:
- Duress by Threat
- Duress of Circumstances
Cole 1994:
Duress by threat must mean a threat to make the D commit a specific offence
Duress by Threats
Where the D’s will is overborne by threats of death or serious injury.
Valderrama-Vega:
-Said that threats can be cumulative, other threats that come with death or serious injury threats can be considered. (Only if death or serious injury threat as well)
Martin 1989:
-Said threat can be to D or D’s family
Subjective Objective Test:
Given in case of Graham 1982:
-Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death?
-If so, would a sober and reasonable person, with the same characteristics of the D, act in the same way?
Bowen 1996:
Gave folowing factors that could be relevent when considering D’s characteristics in test:
-Age
-Pregnancy
-Serious Physical Disability
-Recognised Mental Illness or Psychiatric Disorder
-Gender
Safe Avenue of Escape
Duress can only be used if the D is in a situation where he has no safe avenue of escape.
Hudson & Taylor:
- 2 girls were prosecution witnesses, girls were threatened with physical violence if the testified, girls gave false testimony, charged with purgory, conviction quashed
- Said that if police protection is available it is possible that D cannot rely on duress
- Did note that police protection isn’t always effective
Imminence of Threat
Threat must be effective at the moment the crime is committed.
Hudson & Taylor:
- Judge originally ruled that Duress not available because threat wasn’t there while they testified.
- CA said that if it was acting on their conscience during the offence then Duress can be used.
Intoxication and Self-Induced Duress
Intoxication:
- If D becomes Voluntarily Intoxicated and mistakenly believes he is being threatened, Defence is not available
- If D is not mistaken and Intoxication is irrelevant, D can use the Defence
Self-Induced Duress:
-D brings the Duress on himself through his own actions e.g. Voluntarily joins a criminal gang and commits other offences but is forced to commit a crime he doesn’t want to do.
Where D is aware that he may be put under Duress to commit offences, he cannot use the defence. This applies to:
- D joining a criminal gang which he knows uses violence
- When D puts himself in a position where he knows he is likely to be subjected to threats of violenec or actual violence.
Sharp 1987:
- D joined gan who carried out robberries, D claimed he wanted to withdraw from robberies
- During last robbery, postmaster was shot dead
- Found guilty because D knew gang were likely to use violence
Sheperd 1987:
- D joined organisation of non-violent shoplifters
- D said he wanted to stop taking part and was threatened with violence
- D caught shoplifting, not guilty because he couldn’t have known that gang was likely to use violence.
Duress of Circumstances
D may be forced to act because of surrounding circumstances.
Conway 1988:
- Passenger in D’s car had been shot at by men a few weeks ago, car was stationary and saw two men running towards the car
- Passenger thought the men were after him and yelled at D to drive off, D drove away quickly and was charged with reckless driving
- On appeal, CA said duress was available if d was acting to avoid a threat of death or serious injury.
Pommell 1995:
-Made it clear that Duress of Circumstances could be a defence to all crimes except Murder and Attempted Murder.
Cairns 1999:
-Considered whetehr there had been a real threat to D or whether defence was available where D reasonably thought there was a threat of death or serious injury, even if there was no actual threat.
Reform and Criticisms
Unavailability for Murder:
- Ruling from Howe criticised
- Lord Hallsham said the ordinary person should be capable of heroism: sacrificing his own life rather than taking innocent one.
- Law Commission 1993: Said defence should be available for all crimes.
No Allowances for Low IQ:
-Bowen: CA refused to allow the fact that D had Low IQ to be taken into account in deciding whether found it more difficult to resist threats.
Police Protection:
- Hudson & Taylor: CA recognised that police protection may not always be effective and even when people had opportunity to go to police, they might be so afraid of consequences that they don’t.
- Hasan: Questioned judgement in Hudson & Taylor and said that the law on not taking the opportunity to go to the police has been left uncertain.
