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A2 Law - Defence of Duress > Duress By Threat > Flashcards

Duress By Threat Flashcards

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1
Q

What case illustrates there must be a threat of death or serious injury?

A

R v Hudson and Taylor (1971)

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2
Q

What case happened in 1971?

A

R v Hudson & Taylor

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3
Q

In what year was the case of R v Hudson & Taylor?

A

1971

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4
Q

What is the case of R v Hudson & Taylor relevant to?

A

There must be serious threat of death or injury

The threat must be immediate

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5
Q

What case is relevant to the threat must be made to the defendant or to those they have responsibility over?

A

R v Ortiz (1986)

R v Shayler (2001)

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6
Q

What case happened in 1986?

A

R v Ortiz

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7
Q

In what year was the case of R v Ortiz?

A

1986

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8
Q

What happened in the case of R v Ortiz (1986)?

A

The defendant was forced to smuggle cocaine or ‘his family would disappear’

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9
Q

What was the outcome of R v Ortiz (1986)?

A

Duress was allowed

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10
Q

What is the case of R v Ortiz (1986) relevant to?

A

The threat may be made to the defendant or others

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11
Q

What was set out in the case of R v Shayler (2001)?

A

That the threat can be to the defendant or ‘to some other person for whom he has responsibility’

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12
Q

What case took place in 2001?

A

R v Shayler

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13
Q

In what year was the case of R v Shayler?

A

2001

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14
Q

What is the case of R v Shayler (2001) relevant to?

A

The threat must be to the defendant or others he has responsibility for

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15
Q

Why has the case of R v Shayler (2001) been criticised?

A

Because it undercuts other points of the defence which means it has a limited scope. What was set out in R v Shayler (2001) potentially allows people to use the defence of duress to protect strangers.

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16
Q

What does it mean by ‘the threat must be immediate’?

A

The threat must be effective when the crime is committed but this does not mean that the threats need to be carried out immediately

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17
Q

What are the elements of duress by threat?

A

Specified crime
Immediate threat
Threat of death or serious injury
Threat of violence must be to the defendant or a person or others the d has responsibility over

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18
Q

What happened in the case of R v Hudson and Taylor (1971)?

A

The defendants were told if they did not lie in court they would be cut up later

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19
Q

What case devised a test for the threat of immediacy?

A

R v Hansan (2005)

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20
Q

What is the case of R v Hansan (2005) relevant to?

A

The House of Lords devising a test for the immediacy of a threat

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21
Q

What case happened in 2005?

A

R v Hansan

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22
Q

In what year did the case of R v Hansan happen?

A

2005

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23
Q

What is the test for immediacy?

A

The defendant just believe the threat to be immediate or almost immediate

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24
Q

In terms of evaluation, what is the problem with the House of Lords test for immediacy of a threat?

A

It is subjective. It is reliant on the testimony of the defendant which could be unreliable. The inclusion of ‘almost immediate’ has undercut the rest of the statement by making it ambiguous.

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25
Q

R V HUDSON AND TAYLOR NOT IN DONT UNDERSTAND

A

In relation to threat must be immediate

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26
Q

When is the defence of duress not available?

A

For murder or attempted murder
If there is a threat to damage or property
If the threat involves revealing the defendants sexual tendencies or financial position
If the defendant had the opportunity to seek help from the police
If the defendant has voluntarily engaged in criminal associations

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27
Q

Double when all this ‘duress not available when…’ Do you really need all these?

A

B

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28
Q

What test has been established to determine whether the defendant acted under duress?

A

The graham test

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29
Q

What is the graham test?

A

A two part test devised to establish if the defendant acted under duress or not

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30
Q

What test was the graham test established in?

A

R v Graham (1982)

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31
Q

What case happened in 1982?

A

R v Graham

32
Q

What year was the case of R v Graham?

A

1982

33
Q

What is the case of R v Graham (1982) relevant to?

A

The Graham test

34
Q

What are the two parts of the Graham test?

A

The subjective test

The objective test

35
Q

What is the subjective test within the Graham test?

A

’ The defendant must have a reasonable belief in the circumstances’ the court will assess each case individually to decide if there was a genuine belief

36
Q

In regards to the Graham test, if there is a genuine belief, what happens next?

A

It will pass onto the second test, the objective test and it will be decided if the belief was objectively reasonable.

37
Q

What case is relevant to the subjective test in the Graham test?

A

R v Safi and others (2004)

38
Q

What case happened in 2004?

A

R v Safi and others

39
Q

In what year did the case of R v Safi and others happen?

A

2004

40
Q

What is the case of R v Safi and others (2004) relevant to?

A

The subjective test within the Graham test

41
Q

What happened in the case of R v Safi and others (2004)?

A

They hijacked a believe if they landed a plane they faced a threat from the taliban

42
Q

What was the outcome of R v Safi and others (2004)

A

They were found not guilty, it was believed there belief was reasonable.

43
Q

What did the case of R v Safi and others (2004) set out?

A

That the beliefs must be reasonable

44
Q

Check safi case doesn’t seem overly relevant to the subjective test

A

!!

45
Q

What is the objective test?

A

A sober person of reasonable firmness, sharing the characteristics of the defendant, might have acted as the defendant did.

46
Q

What is the case of R v Bowen (1996) relevant to?

A

The characteristics which are considered in the objective test

47
Q

What case took place in 1996?

A

R v Bowen

48
Q

What year did the case of R v Bowen take place?

A

1996

49
Q

What case is relevant to characteristics considered in the objective test?

A

R v Bowen (1996)

50
Q

What characteristics did the court seem to be relevant in R v Bowen (1996)?

A

Age
Pregnancy
Serious physical ability
Recognised mental illness and gender

51
Q

What characteristics were not deemed relevant in the case of R v Bowen (1996)?

A

Self-imposed characteristics caused by drugs or alcohol

52
Q

In what case was it first laid down that duress was not available for murder?

A

R v Howe (1989)

53
Q

What case took place in 1989?

A

R v Howe

54
Q

In what year did the case of R v Howe take place?

A

1989

55
Q

What is the case of R v Howe (1989) relevant to?

A

It laid down that duress was not available for murder

56
Q

What case followed this principle?

A

R v Wilson (2007)

57
Q

Why was there some controversy about the case of R v Wilson (2007)?

A

Because the boy was only 13 years old and was threaten by his father. Some believe this was too harsh and duress should’ve been available.

Then others argued if this was the case the whole defence of duress and murder would need to be reformed as you cannot make occasionally exceptions as then it leads to inconsistencies within the law

58
Q

What case illustrates duress is not available for attempted murder?

A

R v Gotts (1992)

59
Q

Which case is similar to R v Gotts (1992) and in what respect?

A

It is similar to R v Wilson (2007) in that both defendants were young and forced to commit a crime (murder/attempted murder) by their father but duress was not available.

60
Q

What case took place in 2007?

A

R v Wilson

61
Q

In what year was the case of R v Wilson?

A

2007

62
Q

In what year was the case of R v Gotts?

A

1992

63
Q

What case happened in 1992?

A

R v Gotts

64
Q

Briefly, what are the evaluation points for duress?

A

Duress being unavailable for murder is harsh
The mens rea for murder and GBH are the same
Not allowing low iq is harsh

65
Q

What is an example of if being very harsh when duress is not available for murder?

A

When terrorist organisations coerce someone into committing a crime by threatening harm to their family

66
Q

What is one of the reasons the House of Lords have for not their decision to deny the defence for murder?

A

A person is expected to sacrifice their own life rather than take another’s

67
Q

In what case did the House of Lords outline their decision to deny the defence of duress for murder?

A

R v Howe 1989

68
Q

Criticise the House of Lords decision to deny duress to a murder charge based on the decision a person is expected to sacrifice their own life…

A

It is unrealistic to expect such a degree of heroism. Also part of the defence is on the basis of what a ‘reasonable person’ would do, and it is unlikely most people would sacrifice their life.

69
Q

What did clarkson argue?

A

It was unduly harsh to sentence someone to life imprisonment for fielding to reach such heights’

70
Q

What is clarkson relevant to?

A

A criticism of the House of Lords decision to deny the defence to murder charges

71
Q

Explain the mens rea for murder and GBH evaluation point…

A

Duress is unavailable for murder but is available for S18 GBH, yet the mens rea for murder includes the intention to cause serious bodily harm which is the mens rea for a S18 conviction. This seems illogical. Also a defendant who actually kills make only have had the intention to cause serious bodily harm but the victim dies.

72
Q

Explain the low iq evaluation point..

A

It has been criticised it is too harsh to not allow a persons low iq as it may mean they fail to understand the true nature of the matters.

However, if this was changed it could make it easy for people to manipulate the system and claim they have a low iq when they do not. Also it is argued that ‘the sober person of a reasonable firmness’ is not someone with a low iq.

73
Q

Who suggested reform and when and in what document?

A

The law commission in 2006 in ‘murder, manslaughter and infanticide’

74
Q

Who suggested reform?

A

The law commission

75
Q

When was reform suggested?

A

2006

76
Q

In what document was reform suggested?

A

Murder, manslaughter and infanticide

77
Q

What reform did the law commission suggest?

A

The defence of duress should be available as a full defender to fatal offences

A2 Law - Defence of Duress (2 decks)

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