Duress

Question 1

Duress

Answer 1

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.

Question 2

2 types of Duress

Answer 2

1. Can be through a direct threat by another (duress by threats) e.g R v Howe and R v Gotts
2. Can be through circumstances (duress by circumstances) e.g R v Dudley and Steven: Cannibalism case - necessity was starvation.

Question 3

Threats of death or serious injury

Answer 3

Threat must be of either death or serious injury.

Question 4

Valderama - Vega

Answer 4

The cumulative effect of threats can be considered provided there are serious threats.

Question 5

Target of threat

Answer 5

It is no longer necessary for the threat to be aimed at the defendant.

Question 6

Shayler

Answer 6

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.

Question 7

Connection between threat and offence.

Cole.

Answer 7

A connection must exist between the threat and the offence.

Question 8

The duress test

Part 1

Answer 8

Graham - set out a 2 part test:

1. Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (Subjective)

Question 9

Hasan

Answer 9

How D subjectively perceives the threat is not the key issue. D must genuinely and reasonably believe that threat would be carried out.

Question 10

The duress test

Part 2

Answer 10

2. If so, would a sober person of reasonable firmness, sharing D’s characteristics have responded in the same way? (Objective)

Question 11

Horne

Answer 11

Defines a ‘sober person of reasonable firmness’ as an average member of the public, not a hero or a coward.

Question 12

Bowen

Answer 12

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.

Question 13

Safe avenue of escape

Answer 13

Duress can only be used if D is in a situation where he has no safe escape.

Question 14

Gill

Answer 14

D prevented from using defence of Duress because he should have raised alarm.

Question 15

Imminence of threat

Answer 15

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.

Question 16

Abdul - Hussain

Answer 16

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).

Question 17

Self - induced duress

Answer 17

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.

Question 18

Hasan (Formerly Z)

Answer 18

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.

Question 19

Sharp

Answer 19

Gang was violent - threats weren’t

Question 20

Shepherd

Answer 20

Gang was not violent usually - used threats of violence.

Question 21

Duress of circumstances

Answer 21

D may be forced to act because of the surrounding circumstances rather than a specific threat.

Question 22

Circumstance posing a risk of death or serious injury

Conway

Answer 22

D had been previously shot at by two men - successful pleading duress.

Question 23

Martin

Answer 23

Confirmed use of Graham test for duress of threats and duress of circumstances.

Question 24

Target

Answer 24

Same as duress by threats.

Question 25

Connection between danger and offence

Answer 25

Same as duress by threats

Question 26

Safe avenue of escape 2

Answer 26

Same as for duress by threats.

Question 27

Imminence of danger

Answer 27

Same as for duress by threats.