Duress Flashcards
Duress
General defence - can be used for any crime; apart from murder and attempted murder (R v Howe and R v Gotts)
Can be used where D has committed the offence because he has been threatened with/ faces death or serious injury.
2 types of Duress
- Can be through a direct threat by another (duress by threats) e.g R v Howe and R v Gotts
- Can be through circumstances (duress by circumstances) e.g R v Dudley and Steven: Cannibalism case - necessity was starvation.
Threats of death or serious injury
Threat must be of either death or serious injury.
Valderama - Vega
The cumulative effect of threats can be considered provided there are serious threats.
Target of threat
It is no longer necessary for the threat to be aimed at the defendant.
Shayler
Threats must be directed towards D or a person for whom he has responsibility or for whom the situation makes him responsible.
Side note: Threat can be directed at a stranger.
E.g. Where threat is made to set off a bomb unless D performs unlawful act.
Connection between threat and offence.
Cole.
A connection must exist between the threat and the offence.
The duress test
Part 1
Graham - set out a 2 part test:
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (Subjective)
Hasan
How D subjectively perceives the threat is not the key issue. D must genuinely and reasonably believe that threat would be carried out.
The duress test
Part 2
- If so, would a sober person of reasonable firmness, sharing D’s characteristics have responded in the same way? (Objective)
Horne
Defines a ‘sober person of reasonable firmness’ as an average member of the public, not a hero or a coward.
Bowen
Part 2 of test: Decided which of D’s characteristics could be attributed to the ‘sober person of reasonable firmness’:
- Age (very young or very old)
- Pregnancy
- Serious disability
- Recognised mental illness
- Sex - C/A said women have more moral courage
Low IQ is NOT taken into account.
These all affect D’s ability to resist threat.
Safe avenue of escape
Duress can only be used if D is in a situation where he has no safe escape.
Gill
D prevented from using defence of Duress because he should have raised alarm.
Imminence of threat
Threat must be effective at the time the crime is committed - although it isn’t necessary that threats must be able to be carried out immediately.
Abdul - Hussain
The threat must operate on D’s mind at the time of committing the act as to overbear his will (this is a matter for the jury to decide).
Self - induced duress
Where through his own actions, D puts himself in a situation he may need to use duress to commit crimes he cannot use the defence i.e Joining gangs/ becoming indebted to drug dealer/ loan shark.
Hasan (Formerly Z)
Duress is not allowed where D voluntarily associates with others involved in criminal activity and he foresaw or ought reasonably to have foreseen risk of being subjected to threats of violence.
Sharp
Gang was violent - threats weren’t
Shepherd
Gang was not violent usually - used threats of violence.
Duress of circumstances
D may be forced to act because of the surrounding circumstances rather than a specific threat.
Circumstance posing a risk of death or serious injury
Conway
D had been previously shot at by two men - successful pleading duress.
Martin
Confirmed use of Graham test for duress of threats and duress of circumstances.
Target
Same as duress by threats.
Connection between danger and offence
Same as duress by threats
Safe avenue of escape 2
Same as for duress by threats.
Imminence of danger
Same as for duress by threats.
