Duress by Circumstances

Question 1

1. The Defence of Duress by Circumstances may apply…

Answer 1

The defence of duress by circumstances may apply, which is a full defence where the defendant is forced to act by surrounding circumstances rather than by a person, and was first established in Willer in 1986.

It can be a defence to all crimes except murder and attempted murder, set out in Pommell.

Question 2

2. The Threat has to be to the Defendant…

Answer 2

The threat has to be to the defendant, his immediate family, or a third party to whom D feels responsible for (Martin).

Here, [eg. Had to drive through a red light to avoid a high speed crash].

Question 3

3. The Threat has to be of Death or…

Answer 3

The threat has to be of death or serious injury, but the cumulative effect of threats can be considered along with a threat of injury, (Valderrama-Vega).

Here [eg. the threat was of serious injury as there was potentially going to be a high speed crash].

Question 4

4. As established in Martin, the jury must consider the 2 stage test set out in Graham:

Firstly…

Secondly…

Answer 4

As established in Martin, the jury must consider the 2 stage test set out in Graham:

Firstly, was D compelled to act because they reasonably believed they had good cause to fear death or serious injury? (a subjective test).

Secondly, if so, would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way? (an objective test).

Question 5

5. For the objective test…

Answer 5

For the objective test, characteristics of D that can be considered are mental illness, disability, age, gender and pregnancy, but not low IQ (Bowen).

Here [eg. Firstly, D did feel compelled to act because he reasonably believed he had good cause to fear serious injury to others as the cars were approaching at speed. Secondly, a sober person of reasonable firmness with D’s characteristics would have responded in the same way. Both parts of the Graham test are therefore satisfied].

Question 6

6. The threat must be imminent…

Answer 6

The threat must be imminent, although not immediate, (Martin).

Here [eg. the threat to others was imminent as X was about crash in to the back of D].

Question 7

7. There is no need for a real threat…

Answer 7

There is no need for a real threat, just a threat perceived by D, as in Cairns.

Here [eg. although there was no actual threat, D perceived that there was a threat].

Question 8

8. There must not be a safe…

Answer 8

There must not be a safe avenue of escape, such as going to the police, set out in Cairns.

Here [eg. D did not have a safe avenue of escape such as time to call the police, and had to act there and then].

Question 9

9. To Conclude…

Answer 9

To Conclude, the Defence of Duress by Circumstances may apply, so D may be found not guilty.