Duress By Circumstances Flashcards
What is duress by circumstances?
Duress by circumstances is a full defence where the defendant is forced to act by surrounding circumstances rather than by a person.
(Willer)
To which crimes can duress by circumstances be a defence?
Duress by circumstances can be a defence to all crimes except murder and attempted murder.
(Pommell)
Who must the threat be to for duress by circumstances to apply?
The threat must be to the defendant, his immediate family, or a third party for whom the defendant would feel responsible.
(Martin)
What type of threat is required for duress by circumstances?
The threat must be of death or serious injury.
(Valderrama-Vega)
Is a threat to expose sexuality sufficient for duress by circumstances?
No, a threat to expose sexuality is not enough to satisfy the defence.
Is a threat to rape sufficient for duress by circumstances?
Yes, a threat to rape is enough to satisfy the defence.
Is a threat to psychological health sufficient for duress by circumstances?
No, a threat to psychological health is not enough.
(Baker and Wilkins)
Is a threat to damage property sufficient for duress by circumstances?
No, a threat to damage property is not enough.
What is the 2-stage test established in Martin for duress by circumstances?
The jury must consider: 1) Was the defendant compelled to act because they reasonably believed they had good cause to fear death or serious injury? (subjective test) 2) Would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded in the same way? (objective test)
(Graham)
What is the subjective test in the Graham test?
The subjective test asks if the defendant felt compelled to act because they reasonably believed they had good cause to fear death or serious injury.
(Cairns)
What is the objective test in the Graham test?
The objective test asks if a sober person of reasonable firmness, sharing the characteristics of the defendant, would have responded in the same way.
(Bowen)
What characteristics of the defendant can be considered in the objective test?
Characteristics that can be considered include mental illness, disability, age, gender, and pregnancy, but not low IQ or addiction.
(Bowen, Flatt)
What must the threat be in terms of timing for duress by circumstances?
The threat must be imminent, although not immediate.
(Abdul-Hussain, Hudson and Taylor, Shayler)
Is a real threat necessary for duress by circumstances?
There is no need for a real threat, just a threat perceived by the defendant.
(Cairns)
What must there not be and what is the example
There must not be a safe avenue of escape,such as going to the police,(Gill)
