Duress

Question 1

When would one plead the defence of duress by threat?

Answer 1

When the defendant has committed a criminal act as a result of a threat.

Question 2

Is duress by threat a complete defence?

Answer 2

Yes

Question 3

What did Simon Brown LJ say in R v Cole was necessary to use the defence of duress by threat?

Answer 3

‘[T]he defence of duress by threat can only apply when the offence charged … is the very offence which was nominated by the person making the threat.’

Question 4

The defence is only available where there is said to be what between the threat and the crime?

Answer 4

A nexus

Question 5

In which case was the defence of duress first established?

Answer 5

R v Graham

Question 6

In which case did Lord Bingham conduct a review of the defence?

Answer 6

R v Hasan

Question 7

Set out the test created by Lord Bingham in R v Hasan?

Answer 7

1. There must be a threat to cause death or serious injury;
2. The threat must be directed against the defendant, his immediate family or someone close;
3. The test is largely objective meaning
   a) there must be reasonable belief/good cause to fear and
   b) a reasonable person must have responded in the same way;
4. The criminal offence must have been directly caused by the threats relied upon;
5. There must not have been a reasonable opportunity for evasive action;
6. D may not rely on duress to which he has voluntarily laid himself open to.

Question 8

Can duress be relied upon as a defence if the threat is directed at property? Give an authority.

Answer 8

No (DPP for NI v Lynch)

Question 9

In R v Hasan, Lord Bingham said that the threat must be ‘if not to the defendant or a member of his immediate family, to a person …’ Fill in the gap.

Answer 9

‘for whose safety the defendant would reasonably regard himself as responsible’

Question 10

Who could the defendant regard himself as responsible for according to the case of R v Shayler?

Answer 10

Someone he had never met before

Question 11

According to Lord Lane CJ in R v Graham the defendant’s belief in the the threat of violence must be what?

Answer 11

Reasonable

Question 12

Lord Bingham in R v Hasan says the defendant’s belief in a threat must be reasonable and what?

Answer 12

Genuine

Question 13

Which case indicated that an honestly held belief was sufficient even if it was unreasonable?

Answer 13

R v Martin

Question 14

How does mistake made in self-defence differ from a mistake made under duress?

Answer 14

The mistake made in self-defence does not need to be reasonable only honestly held.

Question 15

Should the jury take into account the defendant’s characteristics when applying the defence?

Answer 15

Yes, physical characteristics and any recognised mental illness or psychological conditions (R v Bowen).

Question 16

What did Lord Wilberforce say in Abbott v R?

Answer 16

‘the more dreadful the circumstances of the killing, the heavier the evidential burden … and the stronger and more irresistible the duress needed before it could be regarded as affording any defence.’

Question 17

In which case did the Court of Appeal hold that the defence could stand where there were multiple threats, of which at least one was death or serious injury, and the defendant would not have acted if it had not been for that threat?

Answer 17

R v Valderrama-Vega

Question 18

The two girls in R v Hudson & Taylor got away with perjury despite the threat not being immediate. Why?

Answer 18

Because the threats were said to be ‘likely to be no less compelling’ despite their opportunity to evade the threat (Lord Widgery)

Question 19

Glanville Williams has described R v Hudson & Taylor as what?

Answer 19

‘an indulgent decision’

Question 20

Which case illustrates that the defendant cannot rely on duress where he exposed himself to risk of being threatened?

Answer 20

R v Sharp

Question 21

When might the defendant be able to use the defence of duress by threat if he has joined a criminal gang? Give an authority.

Answer 21

When D could not have foreseen the possibility of violence being used (R v Shepherd)

Question 22

In which case did Dyson LJ clarify ‘it is the risk of being subjected to compulsion by threats of violence that must be foreseen or foreseeable that is relevant, rather than the nature or activity in which the threatener is engaged’ ie the threatener does not have to be a member of a criminal gang for the defence to be prevented?

Answer 22

R v Ali (Israr)

Question 23

In which case was an objective test for knowledge of possible coercion applied?

Answer 23

R v Hasan

Question 24

Is duress available as a defence for murder, attempted or otherwise? Give an authority.

Answer 24

No (established in Abbot v R, confirmed in R v Howe & Others). Neither is the defence available for accessory (R v Howe) nor attempt (R v Gotts).

Question 25

What defence is sometimes described as the doctrine of the lesser of two evils?

Answer 25

Necessity

Question 26

Is the defence of necessity available for murder? Give an authority. What did the judge famously state in this case?

Answer 26

No (R v Dudley & Stevens). Lord Coleridge CJ famously said ‘Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured?’

Question 27

In which case was the defence of necessity not allowed for a homeless person trespassing into unoccupied housing?

Answer 27

London Borough of Southwark v Williams

Question 28

In which case did a fireman driving through a red light not get excused?

Answer 28

Buckoke v GLC

Question 29

In which exceptions has necessity been allowed?

Answer 29

1. Mouse’s Case
2. s5(2)(b) Criminal Damage Act 1971
3. Reg 33 Traffic Signs Regulations and General Directions 1994 which allows emergency services to jump red lights;
4. Re A (Minors) Conjoined Twins: Medical Treatment
5. In medical cases where what is done is best for the ‘victim’ (Re F (Mental Patient: Sterilisation)

Question 30

What has necessity developed into?

Answer 30

Duress of circumstances

Question 31

What is the difference between duress by threat and duress by circumstance according to Lord Hailsham in R v Howe?

Answer 31

‘duress arises from wrongful threats or violence … and necessity arises from any other objective dangers threatening the accused… duress is only that species of the genus of necessity which is caused by wrongful threats.’

Question 32

What was the defendant acquitted of doing in R v Willer?

Answer 32

Reckless driving. He drove his car over a pavement and into a shopping precinct to escape a gang of youths who threatened to kill him.

Question 33

What was the defendant acquitted of in R v Conway?

Answer 33

Reckless driving. C sped away from police officers, believing they were assassins intent on killing his passenger, T.

Question 34

What was the defendant acquitted of in R v Martin?

Answer 34

Driving whilst disqualified. His wife threatened to commit suicide unless he drove.

Question 35

What is the test for duress of circumstances given in R v Martin?

Answer 35

1. Was D compelled to act as a result of a reasonable belief/good cause to fear death or serious physical injury; and
2. Would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded similarly?

Question 36

How did the case of R v Pommell extend duress of circumstance?

Answer 36

This was the first case the defence was extended beyond road traffic offences.

Question 37

What was Pommell charged with?

Answer 37

Possession a firearm. He had taken a loaded submachine gun from his friend to prevent him from committing murder.

Question 38

What offence did duress of circumstance apply to in R v Baker and Wilkins?

Answer 38

Criminal damage

Question 39

Which case tells us that duress of circumstance cannot be used to prevent real or perceived serious psychological injury on serious physical harm or death?

Answer 39

R v Baker and Wilkins

Question 40

What were the facts in R v Abdul-Hussain?

Answer 40

A-H was an Iraqi refugee living in Sudan. He helped fellow refugees leave Sudan by forging passports. His permit was up and he feared deportation to Iraq where he would face execution. He and others boarded a plan and hijacked it. They landed in Stanstead.

Question 41

Why did the Court of Appeal quash Abdul-Hussain’s conviction?

Answer 41

1. They said duress of circumstance could be a defence but proportionality should be considered;
2. The defence is not limited to where D had acted spontaneously;
3. The defence may be used against imminent threats that overbear D’s will.