Duress Flashcards
Lord Bingham used defence of necessity and duress of circumstances interchangeably causing confusion
Hasan
non-voluntary actions. CA: attackers threats ‘neutralise the will’ of D
Hudson and Taylor
Duress of circumstances first recognised here
Willer 1986
Duress of circumstances confirmed/ approved here
Conway 1989
Duress of circumstances is not confined to traffic cases - there is no reason to limit this defence to one type of situation
Pommel 1995
Lord Bingham did not see the merits of reversing the burden of proof so it was on the defendant
Hasan
Elements of defence of duress laid out here first
Was D impelled to act because he reasonably feared death or serious injury
Have the prosecution proved to the jury that a reasonable person would not have responded the same way?
What case approved this?
Graham 1982
Howe 1987 HL
Leading case on duress
6 Elements of the defence
Hasan 2005
Element 1 - death or serious injury
What does not count:
- Pain suffered by degenerative disease/ MS
- Punch in the face
- mere psychological harm
- fear of committing suicide - threat / danger must be external to D. Characteristics cannot allow someone to get away with crime
- Threats to property
Brown
Quayle
Aikens
Baker and Wilkins
Rodger and Rose
M’Growther
Element 1 death or serious injury:
A line must be drawn somewhere in terms of what must be threatened to justify the defence. That line is drawn between threats to the person and threats to property
Lynch - Lord Simon
Element 2: A threat to / fear for whom
- a real threat to someone’s wife is sufficient. Objective dangers threatening the accused or others
- boyfriend falls under ‘some other person for whose safety the defendant would reasonably regard herself as responsible’ - duress allowed
- perhaps the threat itself creates a responsibility for the people who may be harmed even if there was no prior connection between them
- Lord Bingham: fear for himself, member of immediate family, someone close to D or a person for whose safety D would reasonably regard himself responsible
Martin
Wright
Lord Woolf in Shayler 2001
Hasan
Element 3: The objective elements - reasonable belief
- it is essential that D actually believe in the threat.
- A genuine belief in the threat is enough. Not enough for court to show there was no real threat to stop defence being successful
Hasan
- Safi
Element 3: objective elements - person of reasonable firmness with D’s characteristics
- defence fails if someone of reasonable firmness with D’s characteristics would not have given way to threat
- starting point is someone of reasonable firmness, then add some of D’s characteristics
Howe
Graham
Element 3: objective elements: what characteristics can be taken into account:
- age, sex and physical health yes but reasonable person is not ‘emotionally unstable’
- D’s particular vulnerability / pliancy not admissible
- Drug addiction not admissible
- Low IQ not usually considered. May be a category of persons we consider less able to resist pressure (age, maybe sex, pregnancy, disability, recognised mental illness / psychiatric condition)
Hegarty
Horne
Flatt
Bowen
Element 4: Causation
- coercer must direct D to a particular crime, not any crime
- direction to steal money from a bank was sufficient (no need to name specific)
Cole
Ali
